Public procurement laws govern how governments and public bodies purchase goods, services, and works. Before Brexit, the UK followed EU procurement directives, ensuring a uniform approach across all member states. However, since leaving the EU, the UK has developed its procurement framework, introducing key differences from EU regulations.
For businesses looking to engage in public procurement in the UK and the EU, understanding these differences is crucial. This guide explores the key variations between UK and EU procurement laws and how they impact suppliers.
1. Regulatory Frameworks: UK vs. EU
EU Procurement Laws
The EU follows a standardized approach to procurement through the Public Procurement Directives. These include:
Directive 2014/24/EU (on public sector procurement)
Directive 2014/25/EU (on utilities procurement)
Directive 2014/23/EU (on concession contracts)
These rules ensure transparency, competition, and non-discrimination across all EU member states.
UK Procurement Laws
After Brexit, the UK moved away from these directives, introducing its own set of regulations. The most significant legislative change is the Procurement Act 2023, which aims to simplify and streamline procurement processes. The UK still follows principles of transparency and fairness but has introduced more flexible and SME-friendly rules.
2. Procurement Portals: OJEU vs. Find a Tender Service (FTS)
EU System: Official Journal of the European Union (OJEU)
Before Brexit, all high-value UK contracts were published on OJEU.
The OJEU system ensures EU-wide competition for contracts above threshold values.
UK System: Find a Tender Service (FTS)
Since January 1, 2021, the UK replaced OJEU with the Find a Tender Service (FTS).
High-value contracts in the UK are now published on FTS, making it the primary platform for suppliers.
Lower-value contracts are listed on Contracts Finder and local government websites.
Impact on Businesses:
UK businesses bidding for UK contracts only need to monitor FTS, not OJEU.
UK suppliers seeking EU contracts still need to register on TED (Tenders Electronic Daily), the EU’s procurement portal.
3. Flexibility in Procurement Procedures
EU Procurement Rules: Strict Procedures
EU directives require strict adherence to formal procurement procedures, including:
Open, Restricted, and Competitive Dialogue Procedures
Negotiated Procedures with and without Prior Publication
Innovation Partnerships
These structured processes ensure non-discriminatory competition but can be bureaucratic and time-consuming.
UK Procurement Rules: More Flexibility
Under the Procurement Act 2023, the UK has introduced:
Simplified procedures to reduce administrative burdens.
Faster procurement for urgent needs (e.g., in emergencies like the COVID-19 pandemic).
More discretion for public sector buyers to award contracts based on innovation and social value.
Impact on Businesses:
UK procurement is now more adaptable, especially for SMEs.
EU procurement remains highly structured, requiring businesses to follow complex tendering processes.
4. Treatment of SMEs and Local Suppliers
EU Approach: Equal Treatment Across Member States
The EU’s procurement laws emphasize non-discrimination, meaning all EU-based businesses must be treated equally. Governments cannot favor local businesses over suppliers from other EU countries.
UK Approach: Supporting Local and SME Suppliers
Post-Brexit, the UK government has:
Increased its commitment to awarding more contracts to SMEs.
Allowed for greater preference for UK-based businesses where legally possible.
Encouraged contracting authorities to break large contracts into smaller lots to support SMEs.
Impact on Businesses:
SMEs in the UK now have more opportunities to win public contracts.
In the EU, businesses must compete on a level playing field across all member states.
5. Social Value Considerations
EU Social Criteria
The EU’s procurement rules require contracts to consider:
Environmental sustainability
Labor rights and fair wages
Ethical sourcing
However, economic considerations (like lowest cost) often take precedence over social value.
UK Social Value Model
The UK now mandates that all major public contracts include social value criteria, focusing on:
Sustainability and reducing carbon emissions
Job creation and economic benefits for communities
Ethical sourcing and diversity in supply chains
Impact on Businesses:
UK businesses bidding for public contracts should highlight social value contributions.
In the EU, while social criteria exist, pricing and competition remain the dominant factors.
Contract Award Criteria and Evaluation
EU Approach: MEAT (Most Economically Advantageous Tender)
Contracts are awarded based on cost-effectiveness and quality.
Strong focus on technical specifications and compliance.
UK Approach: Greater Emphasis on Value and Performance
The Procurement Act 2023 allows more flexibility in awarding contracts based on innovation and supplier performance.
Greater use of past performance evaluation to determine contract awards.
Public sector buyers can now negotiate more freely with suppliers.
Impact on Businesses:
UK businesses should focus on demonstrating value beyond just price.
EU businesses must adhere to strict, pre-defined evaluation criteria.
7. Compliance and Legal Challenges
EU Procurement Compliance
Strict enforcement by the European Commission and national courts.
High levels of transparency, with clear appeal processes for suppliers.
UK Procurement Compliance
The Procurement Act 2023 introduces a new single digital platform for monitoring compliance.
Faster dispute resolution processes to reduce legal barriers.
Increased efforts to eliminate excessive bureaucracy while maintaining fairness.
Impact on Businesses:
In the UK, suppliers benefit from a simplified dispute resolution system.
In the EU, businesses must navigate more rigid legal frameworks when appealing procurement decisions.
