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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.

Economic operators that were involved in a public tender contract procedure in Spain at the time of the UK's exit from the EU will continue to be subject to the rules provided for in the public tenders for companies belonging to the EU if this procedure was already in progress at the exit date, provided that the Spanish companies receive the same treatment in the UK on the basis of the reciprocity principle.

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

UK legislation will have to be complied with. However, it has already been agreed that the UK will become a member of the WTO's Government Procurement Agreement (GPA). Nevertheless, the date on which the GPA will enter into force for the UK is still not known, as it depends on various internal ratification procedures. It takes at least 30 days to enter into force, but it could be delayed. When it enters into force, the Spanish operators will bid for tenders in the UK under the conditions included in the GPA. From the date of Brexit to the entry into force of the GPA for the UK, the provisions of Spanish and EU law for third countries will be applied in Spain.

What regulations will be applicable to Spanish economic operators that participate in the public procurement procedures operating 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. In the case of contracts for works, the special administrative terms and conditions may require non-EU companies who win the award to open a branch in Spain, appointing attorneys or representatives for their operations, and to be entered in the Companies Register.

Article 68 establishes that the report on reciprocity will be waived for companies from countries signatory to the World Trade Organisation's Government Procurement Agreement. Thus, once the UK begins to form part of the GPA, following the period that must elapse between the ratification by the British Parliament and the entry into force of the GPA, such a report will not be required.

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.

When the UK accedes to the WTO's GPA, a report on reciprocity will not be necessary and it will have access to the tenders covered by this Agreement. The GPA commitments are less ambitious than those of the current acquis communautaire.

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 UK has negotiated in the WTO its adhesion to GPA to guarantee its access to the EU-27 market and that of the countries signatory to the agreement. This negotiation has also been necessary to guarantee access by the EU-27 to the British market.

On 27 February 2019, the GPA committee adopted the accession of the UK in its own right, but the accession will not enter into force in less than 30 days after the UK submits its instrument of acceptance to the WTO, once it stops being a member of the EU, this period being necessary for internal procedures in the UK.

To ensure there is no break in the GPA cover during this processing period, the British Government approved the Public Procurement (Amendment) (EU Exit) Regulations to guarantee the established rights of European companies.

Non official translation