Recently one of our customers contacted us regarding a contract notice published on the OJEU. The customer was interested in bidding for a contract funded by EuropeAid. A potential barrier to entry was noted at the end of the contract notice, with the following paragraph:

“Please be aware that after the United Kingdom’s withdrawal from the EU, the rules of access to EU procurement procedures of economic operators established in third countries will apply to candidates or tenderers from the United Kingdom depending on the outcome of negotiations. In case such access is not provided by legal provisions in force, candidates or tenderers from the United Kingdom could be rejected from the procurement procedure.”

Our client is not alone in being concerned, there are currently 345 tender notices on the OJEU dealing with a vast array of requirements, ranging from modernising schools with science laboratories in Northern Cyprus, developing a new payroll IT system for the Palestinian Authority, the purchase and commission of network infrastructure for the administrative court of Tunisia to reducing plastic waste in the Americas.

We researched into this and reassured our customer with the statement that Penny Mordaunt, Secretary of State for International Development (in office 2017-2019), told a House of Commons parliamentary hearing in July 2018. During this, she argued “UK-based organisations and individuals should be able to bid for funding, participate in and lead consortia, and otherwise implement as normal all EU development programmes that are approved before December 2020,” when UK MPs will try to negotiate a free-trade deal.

The Commission has been accused of over-reaching by Mordaunt and many others, as it is “not only applying these disclaimers to the funding we channel through the EU budget, over which we do not yet have discretion; it is also applying them to funding that we have chosen to channel through the EU as our preferred delivery partner.” She added, “we have raised these issues with the Commission multiple times and we are shocked and disappointed by their behaviour… I have been very clear that, if we are contributing to UK funds and EU projects, then UK organisations must have access.  We are now looking at how we can use the aid budget to protect UK organisations from this discriminatory practice.”

Claire Godfrey, Bond’s interim director of policy, advocacy and research, also commented separately on the matter: “we are very concerned that the European commission has misunderstood the eligibility criteria for UK NGOs to access funding from the EU in the event of a Brexit no-deal scenario… There is a real danger that UK NGOs will be both discouraged from applying and be discriminated against during the process, if the proper criteria are not used.” A UK government spokesman said: “We are clear that this disclaimer must be removed by the European commission.”