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GOVERNMENT CONTRACTING

​With the Withdrawal Agreement

When would the provisions of the Agreement on the Withdrawal by the United Kingdom from the European Union start to apply?

The transition period runs from the date of the UK's withdrawal from the European Union to 31 December 2020 and would allow the United Kingdom to continue benefitting from the EU acquis.

What will happen during this transition period in terms of UK trade relations with the European Union?

During this transition period and although the United Kingdom would legally be outside of the European Union, it would continue benefitting from the Customs Union and Internal Market framework.

What regulations will be applicable to the procedures for public procurement that are being decided adjudicated on the withdrawal date?

According to the provisions of Title VIII of the draft agreement, European legislation on government contracting would apply to those procedures launched before the transition period and not concluded before the final day of the period.

Will any restrictions apply to bidders during the transition period?

Without prejudice to the application of any restrictions under EU law, the principle of non-discrimination must be enforced by the contracting bodies of both parties to the agreement.

Regarding the transition period, when is a procedure deemed to have been launched?

Generally-speaking, a procedure is deemed to have been launched when the invitation to tender is published.

Regarding the transition period, when is a procedure deemed to have been concluded?

Generally-speaking, a procedure is deemed closed once notification about a formal contract signed according to applicable legislation is published.

Without the Withdrawal Agreement

What will happen starting on the withdrawal date if the UK leaves the EU without reaching an agreement?

There will be no transition period and the United Kingdom will immediately become a third country, without the right to benefit from the EU acquis.

What would happen to UK economic operators?

UK economic operators will have the same status as all other economic operators based in a third country with which the EU has no agreement on the EU contracting market.

What would happen to Spanish economic operators when they submit bids for tenders published by UK contracting bodies?

This will depend on UK legislation.

What regulations will be applicable to the procedures for public procurement that are being decided adjudicated on the withdrawal date?

The rules applied to third countries maintaining a trade relationship with the European Union will apply to European trade with the United Kingdom from the withdrawal date. The provisions of Article 68 of Spanish Law 9/2017, of 8 November, on public sector contracting, which transposes the Directives of the European Parliament and of the Council 2014/23/UE and 2014/24/UE, of 26 February 2014, into the Spanish legal system, would apply. These provisions govern relations with non-EU companies in terms of government contracting.

Any individuals or legal entities from States not belonging to the European Union or from signatory States of the Agreement on the European Economic Area will need to produce a report stating that the home State of the foreign company mutually accepts participation by Spanish companies in public sector contracting.

Besides the reciprocity report, are there any other requirements for UK companies awarded public contracts in the event of no agreement?

For public works contracts, the specific administrative specifications may require non-EU companies that are awarded tenders to open a branch office in Spain, appointing legal representatives for its operations, and for them to be recorded in the Companies Register.

The withdrawal by the United Kingdom from the European Union will mean that it no longer forms part of the WTO Agreement on Government Procurement (GPA). What effects will this have on access to the British government contracting market?

The United Kingdom is currently in negotiations with the WTO regarding its adherence to the GPA in order to provide guarantees on its access to the EU-27 market and other signatories of the agreement. This negotiation is also necessary for guaranteeing access by the EU-27 to the British market. The United Kingdom has expressed its desire to maintain the commitments expressed in the GPA.

If the United Kingdom joins the GPA before Brexit happens, the EU-27 would no longer have full access to the British government contracting market but would rather have the same limited access to said market as the United Kingdom offers to other parties to the GPA.

If the United Kingdom joins the GPA after Brexit happens, the EU-27 would have even more limited access to the British government contracting market during that period, and vice-versa. This does not mean that the two markets will necessarily remain closed, but the conditions established in the specifications for each tender would need to be met in order to determine accessibility to the market.

Non official translation