UK: No-Deal Brexit: Impact On Public Sector Procurement Contracts

Last Updated: 9 September 2019
Article by Richard Bonnar

While a range of outcomes, including a departure under the terms of the current Withdrawal Agreement, remains possible, it is important for businesses to plan for a no-deal Brexit, in which the UK leaves the EU without a withdrawal agreement or other deal. Here we look at the potential impact of a no-deal Brexit on public sector procurement law.

Key impacts

In general terms there will be no public procurement equivalent of a 'Dover lorry park' should the UK leave the EU on a no deal basis.

In the event of a no-deal Brexit:

  • EU rules on public procurement1 crystallise in UK domestic law: UK public procurement regime remains largely unchanged at the domestic level2.
  • Changes to the way operators access and respond to notices in the UK: new UK e-notification service rather than OJEU Notices orTenders Electronic Daily (TED).
  • UK becomes a third country without any transition period: movement of supplies, services and works between the UK and the EU-27 may be subject to tariff/non-tariff barriers, visa and other restrictions arising from the loss of Single Market freedoms, thus impeding UK contractors' ability to bid for or deliver services in the EU27.
  • UK will accede to World Trade Organisation's plurilateral Government Procurement Agreement (GPA): once accession process is complete (this is expected to take a month but could take up to eight months), UK operators will have access to EU procurement markets and those of other signatories on a non-discriminatory basis (but subject to higher thresholds than currently apply under EU law).

Until the UK accedes to the GPA, eligibility requirements under EU law may preclude UK suppliers from participating in EU Member State tenders. The European Commission is clear that following a no-deal Brexit, "economic operators from the United Kingdom will have the same status as all other economic operators based in a third country with which the EU does not have any agreement providing for the opening of the EU procurement market." There is no indication that existing procurement contracts by EU27 contracting authorities will be invalidated as a consequence of a no-deal Brexit.

In contrast, under post-EU Exit public procurement law, EU or GPA contractors will have immediate and continuing access to UK public procurement marketplaces - thus demonstrating the general imbalance between the UK approach to no-deal (which seeks to preserve the status quo and access by EU market operators to UK markets) and that of the EU27 which, with fewer exceptions, apply the doctrine that the UK will have become a third country.

Legislative changes

Using the powers conferred by the European Union (Withdrawal) Act 20183, Amendment Regulations make the following principal changes4:

  • Introduce the new UK e-notification service.
  • Transfer certain functions of the Commission to the Cabinet Office (e.g. to set financial thresholds).
  • Address other otiose references to EU law or institutions.
  • Afford GPA (including EEA) operators continuing access to the UK public sector market place for a period of eight months from EU exit.

Actions for business

  • From the point of exit, UK, EU27 and other GPA businesses should access/respond to UK public sector notices using the new e-notification service rather than TED.
  • UK, EU27 and other GPA businesses may continue to participate in 'inflight' UK public sector procurements.
  • It is not clear how EU27 contracting authorities will treat UK participants in 'inflight' EU27 public sector procurements, given the post-EU exit interlude before the UK accedes to the GPA.

Actions for UK contracting authorities

  • For procurements in progress on exit day, contracting authorities will need to comply with the Amending Regulations from that point (but there is no obligation to re-issue notices already logged on TED).

Crystal ball

Although nothing will change on Day 1 of EU exit, the UK has in time the opportunity to reform its domestic procurement regime, moving away from some of the perceived constraints of the EU regime, whilst still being GPA-compliant. An example might be the prescriptive regime for modification of procured contracts5 which has no parallel under the GPA6.

Like almost everything else relating to Brexit, there is however no clear view as to future UK priorities. And of course, the public procurement policy field will be a pale reflection of the many debates about regulatory convergence and divergence with the EU in a post-Brexit world.

DLA Piper's Brexit and public procurement specialists remain on hand to guide you and your business through the coming months.


1 The key legislative instruments at EU level relating to public procurement are the Public Procurement Directive 2014, the Concessions Contracts Directive 2014 and the Utilities Directive 2014. These are transposed into UK law by the Public Contracts Regulations 2015, the Concession Contract Regulations 2016 and the Utilities Contract Regulations 2016 (and their Scottish equivalents).

2 For more information please see the Public Procurement Policy Note (PPN) 02/19 and Frequently Asked Questions.

3 Section 8

4 The relevant Amendment Regulations are the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 and the Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 (and their Scottish equivalents).

5 Regulations 32 and 72 of the Public Contracts Regulations 2015

6 For further information, refer to the policy paper Consequences of Brexit in the Area of Public Procurement (2017), authored by Sue Arrowsmith and commissioned by the European Parliament.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Shepherd and Wedderburn LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Shepherd and Wedderburn LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions