Brexit and impact on public procurement in NI/RoI
Ahead of the end of the UK-EU
transition period on 31 December, Arthur Cox, our Legal Partners, have
developed a short advisory note on What do I need to know about
procurement on the island of Ireland?
The advisory note is available to view here.
It is vitally important that members familiarise themselves with this
note - specifically for under threshold (less than £5m) public
procurement opportunities in the Republic. In summary:
- While the UK was a member of the EU, and during the transition
year, EU Treaty principles guarding against discrimination on grounds of
nationality applied for under threshold public procurement
opportunities.
- As of 1 January, such principles may no longer apply and,
consequently, for companies incorporated in either jurisdiction on the
island of Ireland, it is likely that queries will arise when
participating in competitions in the other jurisdiction - for example in
relation to procurements that fall below WTO Government Procurement
Agreement threshold of £5m for construction works.
- In the worst case scenario, a UK incorporated company may be
excluded from a under threshold public procurement opportunity in the
Republic therefore on grounds of nationality.
- It is important to note that, for opportunities above £5m,
contracting authorities in the Republic are bound to treat UK
incorporated companies no less favourably than they would a company from
an EU state.
The Federation has been working on these issues with the various
relevant departments of the Northern Ireland Executive, the Northern
Ireland Office and InterTradeIreland over the last few weeks.
The reality all is that all who we have engaged with clearly
recognise the potential issues this causes for Northern Ireland-based
economic operators with respect to under threshold public procurement
opportunities in the Republic. However it is, at this point in time, not
likely that the issues will be resolved before the end of the year and,
therefore, members must clearly understand the potential issues that
may emerge.
Ideally, we have identified the need for a Memorandum of
Understanding between the UK and Irish Governments to maintain
non-discrimination for each other’s economic operators on opportunities
below the current threshold. This is something we will continue to push
strongly for and will keep you updated on further developments over the
coming weeks.
If you encounter any issues in the meantime, particularly as any new
under threshold public procurement opportunities in the Republic are
published in January, then please immediately let us know.