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Post-Brexit public procurement: challenges and regulatory solutions

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These are the slides for the talk on post-Brexit public procurement I will give at the MaCCI conference on Trade Relations after Brexit: Impetus for the Negotiation Process, to be held in Mannheim in 25-26 January 2018.

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Post-Brexit public procurement: challenges and regulatory solutions

  1. 1. 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
  2. 2. 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)
  3. 3. 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?
  4. 4. ‘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)
  5. 5. ‘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
  6. 6. 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)
  7. 7. Standards and transparency How 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)
  8. 8. Administrative cooperation ESPD 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
  9. 9. Cross-border cooperation Joint 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
  10. 10. 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
  11. 11. 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
  12. 12. 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
  13. 13. Thank you for your attention & stay in toucha.sanchez-graells@bristol.ac.uk @asanchezgraells www.howtocrackanut.com

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