post-brexit public procurement: challenges and regulatory solutions
TRANSCRIPT
Challenges and Regulatory
Solutions: Public
ProcurementDr Albert Sanchez-Graells
Reader in Economic Law
EURO-CEFG, MaCCI and the University of Mannheim Joint Conference “Trade Relations after Brexit: Impetus for the Negotiation Process”. Mannheim, 25-26 January 2018
An unavoidable caveat
Without knowing the nature of the overall model for
future EU-UK relationships, this is largely guesswork
Discussion of regulatory issues in the transition
period particularly speculative, so focus on ‘post-
disconnection’ (if there is to be one)
Agenda
‘External dimension’: WTO GPA-related issues and need for coordinated strategy
‘Internal dimension’: functional approach
• Substantive convergence
• Standards and transparency
• Administrative cooperation
• Cross-border cooperation
• Remedies
• Instrumentalisation of procurement?
‘External dimension’
WTO GPA covered procurement
• Not only UK position affected (requires fresh accession)
• EU position affected due to reduced value of covered procurement
• To avoid disruption, EU-UK should establish a joint strategy in
their negotiations with other WTO GPA members—particularly as
to ways in which to renegotiate coverage (splitting may not do)
‘Internal dimension’
This will not only be affected by negotiations between the EU and
UK, but also by the outcome of the WTO GPA adjustment
A big unknown concerns whether UK plans significant reform of
their domestic procurement rules
• WTO GPA baseline not significantly different from EU regulatory
baseline (except in qualification, some aspects of negotiations and
some aspects of remedies), so limited scope for reform
Substantive convergence
Difficulties derived from the precarious position of future CJEU
case law may be particularly relevant in the area of procurement
• EU (Withdrawal) Bill, clause 6(2) problematic
• Possibility of creating obligation to follow new case law?
Additional difficulties derived from the Commission’s increasing
use of soft law and guidance (eg Commission’s Oct 2017 package)
Standards and
transparencyHow to ensure transparency of opportunities
• Access / use of OJEU
(interconnection with Contracts Finder?)
• Use of CPV
Use of common technical standards (largely
as discussed by Prof F Kainer yesterday)
Administrative
cooperationESPD
e-Certis
Development of standards for e-procurement
General issues of mutual recognition
• Including of specific certificates (eg environmental
management -> back to standards)
Enforcement and governance
Cross-border
cooperationJoint and collaborative procurement
Impact on possibilities for CPBs to engage in cross-border sales
• Incidentally, future issues derived from subjection of CPBs to
competition law
Large infrastructure projects and other initiatives
Remedies
Current uncertainty on procurement remedies
• Faulty on EU-end due to non-revision of
remedies directive post-2014 reform
• Current clash between UKSC and EFTA Ct
• On-going discussion of model in UK
Preliminary references to CJEU
Instrumentalisation of procurement?
[Under the radar?]
Industrial policy by another name
• Issues around social value / localisation
• State aid implications / interaction
UK’s peculiar position concerning ring-fencing of contracts
Further details
P Telles & A Sanchez-Graells,
‘Examining Brexit Through the GPA's
Lens: What Next for UK Public
Procurement Reform?’ (2017) 47(1)
Public Contract Law Journal 1-33.
https://ssrn.com/abstract=3076543
Thank you for your
attention & stay in
@asanchezgraells
www.howtocrackanut.com