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Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?

Pedro Telles Orcid Logo, Albert Sanchez-Graells

Public Contract Law Journal, Volume: 47, Issue: 1, Pages: 1 - 34

Swansea University Author: Pedro Telles Orcid Logo

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Abstract

The United Kingdom has formally started the process of leaving the European Union (so called Brexit). This has immersed the UK Government and EU Institutions in a two-year period of negotiations to disentangle the UK from EU law by the end of March 2019, and to devise a new legal framework for UK-EU...

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Published in: Public Contract Law Journal
ISSN: 0033-3441
Published: Chicago American Bar Association 2017
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URI: https://cronfa.swan.ac.uk/Record/cronfa38479
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fullrecord <?xml version="1.0"?><rfc1807><datestamp>2020-08-25T15:15:21.5908467</datestamp><bib-version>v2</bib-version><id>38479</id><entry>2018-02-09</entry><title>Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?</title><swanseaauthors><author><sid>cbb9f02a4820888c1b6c3ce352009a0b</sid><ORCID>0000-0002-0666-6351</ORCID><firstname>Pedro</firstname><surname>Telles</surname><name>Pedro Telles</name><active>true</active><ethesisStudent>false</ethesisStudent></author></swanseaauthors><date>2018-02-09</date><deptcode>LAWD</deptcode><abstract>The United Kingdom has formally started the process of leaving the European Union (so called Brexit). This has immersed the UK Government and EU Institutions in a two-year period of negotiations to disentangle the UK from EU law by the end of March 2019, and to devise a new legal framework for UK-EU trade afterwards. The UK will thereafter be adjusting its trading arrangements with the rest of the world. In this context, public procurement regulation is broadly seen as an area where a UK &#x2018;unshackled by EU law&#x2019; would be able to turn to a lighter-touch and more commercially-oriented regulatory regime. There are indications that the UK would simultaneously attempt to create a particularly close relationship with the US, although recent changes in US international trade policy may pose some questions on that trade strategy. Overall, then, Brexit has created a scenario where UK public procurement law and policy may be significantly altered.The extent to which this is a real possibility crucially depends on the framework for the future trading relationship between the UK and the EU. Whereas &#x201D;EU-derived law&#x201D; will not restrict the UK&#x2019;s freedom to regulate public procurement, the conclusion of a closely-knit EU-UK trade agreement covering procurement could thus well result in the country&#x2019;s continued full compliance with EU rules. Nonetheless, this is not necessarily a guaranteed scenario and, barring specific requirements in future free trade agreements between the UK and the EU or third countries, including the US, the World Trade Organisation Government Procurement Agreement (GPA) seems to be the only regulatory constraint with which future UK public procurement reform needs to conform. However, the position of the UK under the GPA is far from clear. We posit that the UK will face a GPA accession process and GPA members may see Brexit as an opportunity to obtain new concessions from the UK and the EU, which could be both in terms of scope of coverage or regulatory conformity. Further, given the current trend of creating GPA plus procurement chapters in free trade agreements, such as the US-Korea FTA, the GPA regulatory baseline will gain even more importance as a benchmark for any future reform of public procurement regulation in the UK, even beyond the strict scope of coverage of the GPA. Given the diversity of GPA-compliant procurement systems (such as the EU&#x2019;s and the US&#x2019;), though, the extent to which the GPA imposes significant restrictions on UK public procurement reform is unclear. However, we argue that bearing in mind the current detailed regulation in the UK might itself limit deregulation due to the need to comply with the international law principle of good faith as included in the 1969 Vienna Convention on the Law of Treaties and, to a certain extent, the United Nations Convention Anti-Corruption. The aim of this paper is to try to disentangle the multi-layered complexities of Brexit and to explore the issues that Brexit has created in the area of international public procurement regulation, both from the perspective of &#x2018;internal&#x2019; EU law-related issues and with regard to broader &#x2018;external&#x2019; issues of international trade regulation, as well as to assess the GPA baseline regulatory requirements, and to reflect on the impact these may have on post-Brexit public procurement reform in the UK.</abstract><type>Journal Article</type><journal>Public Contract Law Journal</journal><volume>47</volume><journalNumber>1</journalNumber><paginationStart>1</paginationStart><paginationEnd>34</paginationEnd><publisher>American Bar Association</publisher><placeOfPublication>Chicago</placeOfPublication><issnElectronic>0033-3441</issnElectronic><keywords/><publishedDay>23</publishedDay><publishedMonth>10</publishedMonth><publishedYear>2017</publishedYear><publishedDate>2017-10-23</publishedDate><doi/><url>https://ssrn.com/abstract=3076543</url><notes/><college>COLLEGE NANME</college><department>Law</department><CollegeCode>COLLEGE CODE</CollegeCode><DepartmentCode>LAWD</DepartmentCode><institution>Swansea University</institution><apcterm/><lastEdited>2020-08-25T15:15:21.5908467</lastEdited><Created>2018-02-09T12:31:08.3342515</Created><path><level id="1">Faculty of Humanities and Social Sciences</level><level id="2">Hilary Rodham Clinton School of Law</level></path><authors><author><firstname>Pedro</firstname><surname>Telles</surname><orcid>0000-0002-0666-6351</orcid><order>1</order></author><author><firstname>Albert</firstname><surname>Sanchez-Graells</surname><order>2</order></author></authors><documents/><OutputDurs/></rfc1807>
spelling 2020-08-25T15:15:21.5908467 v2 38479 2018-02-09 Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform? cbb9f02a4820888c1b6c3ce352009a0b 0000-0002-0666-6351 Pedro Telles Pedro Telles true false 2018-02-09 LAWD The United Kingdom has formally started the process of leaving the European Union (so called Brexit). This has immersed the UK Government and EU Institutions in a two-year period of negotiations to disentangle the UK from EU law by the end of March 2019, and to devise a new legal framework for UK-EU trade afterwards. The UK will thereafter be adjusting its trading arrangements with the rest of the world. In this context, public procurement regulation is broadly seen as an area where a UK ‘unshackled by EU law’ would be able to turn to a lighter-touch and more commercially-oriented regulatory regime. There are indications that the UK would simultaneously attempt to create a particularly close relationship with the US, although recent changes in US international trade policy may pose some questions on that trade strategy. Overall, then, Brexit has created a scenario where UK public procurement law and policy may be significantly altered.The extent to which this is a real possibility crucially depends on the framework for the future trading relationship between the UK and the EU. Whereas ”EU-derived law” will not restrict the UK’s freedom to regulate public procurement, the conclusion of a closely-knit EU-UK trade agreement covering procurement could thus well result in the country’s continued full compliance with EU rules. Nonetheless, this is not necessarily a guaranteed scenario and, barring specific requirements in future free trade agreements between the UK and the EU or third countries, including the US, the World Trade Organisation Government Procurement Agreement (GPA) seems to be the only regulatory constraint with which future UK public procurement reform needs to conform. However, the position of the UK under the GPA is far from clear. We posit that the UK will face a GPA accession process and GPA members may see Brexit as an opportunity to obtain new concessions from the UK and the EU, which could be both in terms of scope of coverage or regulatory conformity. Further, given the current trend of creating GPA plus procurement chapters in free trade agreements, such as the US-Korea FTA, the GPA regulatory baseline will gain even more importance as a benchmark for any future reform of public procurement regulation in the UK, even beyond the strict scope of coverage of the GPA. Given the diversity of GPA-compliant procurement systems (such as the EU’s and the US’), though, the extent to which the GPA imposes significant restrictions on UK public procurement reform is unclear. However, we argue that bearing in mind the current detailed regulation in the UK might itself limit deregulation due to the need to comply with the international law principle of good faith as included in the 1969 Vienna Convention on the Law of Treaties and, to a certain extent, the United Nations Convention Anti-Corruption. The aim of this paper is to try to disentangle the multi-layered complexities of Brexit and to explore the issues that Brexit has created in the area of international public procurement regulation, both from the perspective of ‘internal’ EU law-related issues and with regard to broader ‘external’ issues of international trade regulation, as well as to assess the GPA baseline regulatory requirements, and to reflect on the impact these may have on post-Brexit public procurement reform in the UK. Journal Article Public Contract Law Journal 47 1 1 34 American Bar Association Chicago 0033-3441 23 10 2017 2017-10-23 https://ssrn.com/abstract=3076543 COLLEGE NANME Law COLLEGE CODE LAWD Swansea University 2020-08-25T15:15:21.5908467 2018-02-09T12:31:08.3342515 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Pedro Telles 0000-0002-0666-6351 1 Albert Sanchez-Graells 2
title Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?
spellingShingle Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?
Pedro Telles
title_short Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?
title_full Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?
title_fullStr Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?
title_full_unstemmed Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?
title_sort Examining Brexit Through the GPA's Lens: What next for UK Public Procurement Reform?
author_id_str_mv cbb9f02a4820888c1b6c3ce352009a0b
author_id_fullname_str_mv cbb9f02a4820888c1b6c3ce352009a0b_***_Pedro Telles
author Pedro Telles
author2 Pedro Telles
Albert Sanchez-Graells
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publishDate 2017
institution Swansea University
issn 0033-3441
publisher American Bar Association
college_str Faculty of Humanities and Social Sciences
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hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
url https://ssrn.com/abstract=3076543
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description The United Kingdom has formally started the process of leaving the European Union (so called Brexit). This has immersed the UK Government and EU Institutions in a two-year period of negotiations to disentangle the UK from EU law by the end of March 2019, and to devise a new legal framework for UK-EU trade afterwards. The UK will thereafter be adjusting its trading arrangements with the rest of the world. In this context, public procurement regulation is broadly seen as an area where a UK ‘unshackled by EU law’ would be able to turn to a lighter-touch and more commercially-oriented regulatory regime. There are indications that the UK would simultaneously attempt to create a particularly close relationship with the US, although recent changes in US international trade policy may pose some questions on that trade strategy. Overall, then, Brexit has created a scenario where UK public procurement law and policy may be significantly altered.The extent to which this is a real possibility crucially depends on the framework for the future trading relationship between the UK and the EU. Whereas ”EU-derived law” will not restrict the UK’s freedom to regulate public procurement, the conclusion of a closely-knit EU-UK trade agreement covering procurement could thus well result in the country’s continued full compliance with EU rules. Nonetheless, this is not necessarily a guaranteed scenario and, barring specific requirements in future free trade agreements between the UK and the EU or third countries, including the US, the World Trade Organisation Government Procurement Agreement (GPA) seems to be the only regulatory constraint with which future UK public procurement reform needs to conform. However, the position of the UK under the GPA is far from clear. We posit that the UK will face a GPA accession process and GPA members may see Brexit as an opportunity to obtain new concessions from the UK and the EU, which could be both in terms of scope of coverage or regulatory conformity. Further, given the current trend of creating GPA plus procurement chapters in free trade agreements, such as the US-Korea FTA, the GPA regulatory baseline will gain even more importance as a benchmark for any future reform of public procurement regulation in the UK, even beyond the strict scope of coverage of the GPA. Given the diversity of GPA-compliant procurement systems (such as the EU’s and the US’), though, the extent to which the GPA imposes significant restrictions on UK public procurement reform is unclear. However, we argue that bearing in mind the current detailed regulation in the UK might itself limit deregulation due to the need to comply with the international law principle of good faith as included in the 1969 Vienna Convention on the Law of Treaties and, to a certain extent, the United Nations Convention Anti-Corruption. The aim of this paper is to try to disentangle the multi-layered complexities of Brexit and to explore the issues that Brexit has created in the area of international public procurement regulation, both from the perspective of ‘internal’ EU law-related issues and with regard to broader ‘external’ issues of international trade regulation, as well as to assess the GPA baseline regulatory requirements, and to reflect on the impact these may have on post-Brexit public procurement reform in the UK.
published_date 2017-10-23T03:48:39Z
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score 11.012678

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