Current knowledge of Brexit's implications on EU tenders in Denmark and the rest of EU.
16.1.2020
Brexit, the withdrawal of UK from EU, will have an impact on the public procurement area of EU as it will withdraw UK from any and all EU rules, markets etc. Thereby, the UK will de facto be a third country, within the rules and regulations covering public procurement, hence EU tenders. Of course, Britain will in many ways try to diminish the distance between the EU and British legislation. However, Britain will need to reestablish connections with the EU first, and that will take both time and effort.
However, to understand the impact on public procurement it is necessary to establish what is certain and what remains possibilities. Firstly, if UK leaves without a Government Procurement Agreement (GPA) membership from the World Trade Organization (WTO) or a Free Trade Agreement (FTA) the access to the EU public procurement market is questionable. Moreover, the only inclination of reaching either agreements stems from the political declaration of 12/11/2019 on the future relationship between EU and UK published by the council of Europe:
“Noting the United Kingdom’s intention to accede to the WTO Government Procurement Agreement (GPA), the Parties should provide for mutual opportunities in the Parties’ respective public procurement markets beyond their commitments under the GPA in areas of mutual interest…” (Section: VIII. 46)
If the EU’s market of public procurement remains accessible for UK, the following procedures published by the European Commission take effect:
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Directive 2014/25/EU, article 85: when 50 % of the product originate in a third country (hereafter UK) the contracting body is allowed to reject the bid. Moreover, if the bid is not rejected, the contract cannot be awarded to the party having 50 % of origin in a third country if another bid is equal.
Thus, Brexit places UK in a disadvantageous position when it comes to the public procurement market in the EU. Additionally, UK also faces restrictions when dealing with defense and security matters.
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Directive 2009/18/EU, recital 18: Member States of EU retain the power to allow/disallow economic operators from thirds countries to participate in EU tenders within this industry.
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Directive 2009/18/EU, article 22: Security clearance from UK may no longer suffice as it can be disallowed by the contracting party of the EU tender.
What with the GPA and FTA proving to be the foundation for accessibility to the market it remains to be seen if UK will have a future within EU tenders after Brexit or if the EU markets disregards this when it comes to a former member state of the EU and close trade partner. The results of UK’s access to the EU market on public procurement is therefore still pending, but even if they get more or less full access, UK based companies remain in a highly disadvantageous position when it comes to winning and being awarded an EU tender.