Procurement policy note PPN 08/20 and the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 SI 1319

Published 1 December 2020

Following the publication of the Public Procurement (Amendment etc.)(EU Exit) Regulations 2020 SI 1319 (“PPAR”) that amend procurement legislation to reflect necessary changes required by the UK leaving the EU, Cabinet Office has published PPN 08/20 introducing “Find a Tender” (shortened to “FTS” not “FAT”).

FTS is the website where all UK contracting authorities and utilities will be required to publish their public procurement notices (such as contract notices, contract award notices, modification notices and VEATs etc) once the UK leaves the EU at 11pm on 31 December 2020 (referred to as “IP Completion Day”). The url is www.find-tender.service.gov.uk and it goes live at the end of the Transition Period/IP Completion Day. It will be free to access by contracting authorities, utilities and bidders.

Cabinet Office has also published some useful FAQs on the requirements around publishing on FTS.

This briefing summarises the key points to note and should be useful for both procurement professionals and bidders that bid for public sector or utility contracts.

At the moment and up to 11pm on 31 December 2020, contracting authorities and utilities are still required to publish their procurement notices in the Official Journal of the European Union (“OJEU”).

Will procurements still have to be run as they are now?

The PPAR do not make significant amendments to the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016 or the Concessions Contracts Regulations 2016. This means that the processes applied now in procurements will still apply once the UK has left the EU. The main changes made by the PPAR relate to the removal of European specific points and the requirement to publish in OJEU.

We are expecting a Green Paper to be published proposing potential changes to procurement legislation once the UK has left the EU.

When does FTS kick in?

Any procurement process starting after 11pm on 31 December 2020 must be published on FTS.

Do remember that it can take up to 48 hours for a procurement notice to be published in OJEU. This means that if you despatch a notice to OJEU but it does not appear in OJEU until after 11pm on 31 December 2020, you will also have to publish the procurement notice in FTS.

Contracting authorities and utilities will need a Supplier Registration Service account if they publish directly onto FTS. Those contracting authorities/utilities that use a procurement portal (referred to as a “third party provider” or “esender” in the PPN) will be able to continue to publish through their portal as long as the portal provider has successfully completed integration. The PPN includes a link to those esenders that have already completed integration.

Will the procurement notices in FTS be the same as they are in OJEU?

The FAQs to the PPN set out that all the current procurement notices (i.e. those used in OJEU) will exist and be available on FTS.

What about procurements in progress? As in procurements started pre 11pm on 31 December 2020 and that are due to conclude after the UK has left the EU?

The PPN and PPAR are clear that the current requirements to publish procurement notices in OJEU will continue to apply after the end of the Transition Period for procurements “launched” pre 11pm on 31 December 2020 but not yet “finalised” by this date. For example, if a contracting authority/utility published a contract notice in OJEU using the open procedure at 10am on 31 December 2020, then once that procurement process has concluded in 2021, that contracting authority/utility would be required to publish its contract award notice in OJEU. This makes sense as the process is started and concluded on the same site.

The PPN sets out that to make it easier for suppliers looking at UK opportunities, where a contracting authority/utility publishes a notice in OJEU (in the circumstances set out above), it should also publish in FTS but this is not a legal requirement.

The PPAR set out that a procurement process is “launched” when it has been advertised either in a Prior Information Notice (PIN) as a call for competition, a Contract Notice or where a notice is not required, when the contracting authority/utility contacts relevant bidders to participate in the relevant procedure (such as a negotiated procedure without advert).

The PPAR set out that a procurement process is “finalised” when a contract award notice is finalised or where a contract award notice is not required, the procurement is “finalised” when the contract is entered into (signed and dated by both parties) or when bidders are informed why the contract was not awarded if there was a decision not to award.

What about contracts awarded under Framework Agreements or Dynamic Purchasing Systems (DPSs)?

The PPAR provide that where the Framework Agreement or DPS was concluded and has not expired or terminated before IP Completion Day; or where a procedure for setting up a framework agreement was launched but not finalised before IP Completion Day, the Public Contracts Regulations 2015 will apply to the award of contracts under that framework agreement or DPS as if unamended by the PPAR which means that procurement notices will still have to be published in OJEU.

Is FTS the same as Contracts Finder?

No – they are separate sites. Contracting authorities will have to publish procurement notices in both FTS and Contracts Finder (in the same way they are currently required to do so in OJEU first and then Contracts Finder).