In relation to the impact on procurement rules, two basic, related points must be made at the outset. First, the UK for the time being remains part of the EU. Contracting authorities and utilities remain bound by the provisions of the relevant regulations. Suppliers retain the same rights and have access to the same remedies from the courts. This will remain the case at least until the UK ceases to be a member of the EU or the EEA. Second, much of procurement law in the UK involves transposition of EU Directives into national law. It will remain the law unless and until repealed by either Westminster or the Scottish Parliament.

It is unrealistic to expect substantial deregulation. All realistic options for the UK’s relationship with the EU entail the regulation of procurement to varying degrees. Second, the UK has increasingly used procurement to pursue domestic policy aims. Examples of this trend are the Procurement Reform (Scotland) Act 2014, the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 and the SME focused provisions in Part 4 of the Public Contracts Regulations 2015. Also, informed critics would point to aspects of the EU system being insufficiently flexible rather than inherently flawed. Significant deregulation is unlikely to be a policy priority. However, one could envisage government seeking to limit the possibility of bidders holding government to account through the courts.

The future form of procurement regulation will depend on the UK’s relationship with the EU.  Essentially, the closer that relationship, particularly in terms of single market access, the less scope exists for divergence from current procurement rules. The EEA/Norwegian model, for example, would not involve significant changes. Matters become more complex when considering other models.  The message emanating from UK Government is that the country remains open for business. This suggests that retaining access to foreign markets for UK business through continued membership of the Government Procurement Agreement (“GPA”) will be likely. The GPA forms part of the broader WTO framework. The UK is party to the GPA through its EU membership. However, the GPA’s coverage is less extensive than that of the EU procurement rules. For example, the list of sub-central government entities covered is narrower than those covered by the EU Directives as are the types of services within scope.

Alternatively, it may also be possible to have bespoke arrangements with trading blocs or individual countries. The complexity involved should not be underestimated which may make these less likely than remaining party to or acceding to pre-existing arrangements.

While the broad options may be relatively simple to describe, invariably there are a range of difficult issues in the detail. For example, the Procurement Reform (Scotland) Act 2014 requires contracting authorities to adhere to the principles of equal treatment, non-discrimination, transparency and proportionality for contracts with an estimated value above specified thresholds. As a devolved matter within the UK, this clearly raises the possibility of core principles of EU procurement law surviving in parts of the UK following Brexit.