Participation in EU Public Tender for Companies Located in the United Kingdom After BREXIT

Administrative Regional Court of Piedmont (Turin), Section II, 3 December 2021, No. 1110

With the judgment in question, the Regional Administrative Court of Piedmont ruled on a dispute concerning the access of a company established in the United Kingdom to the Italian public procurement market after Brexit.

The case originated from the appeal of an economic operator with a registered office in London for the annulment of the decision to award service in the public tender held in Italy in which it came second. Having been notified of the appeal, the successful tenderer filed a cross-appeal in which it contested in several aspects the main appellant’s admission to the tender in question.

Specifically, the cross-appellant argued that the English company would not have been entitled to participate in the tender, considering that i) as of 1 January 2020, the United Kingdom withdrew from the European Union and became a “third country”; ii) the withdrawal agreement provides for a transition period that ended on 31 December 2020; iii) the tender launched by the administration does not fall within the scope of the Government Procurement Agreement (“GPA”), to which the United Kingdom acceded, on the date of submission of tender offers (8 May 2021).

In this respect, the Regional Administrative Tribunal first pointed out that the company involved was admitted to the tender in the application of the provisions of Article 49 of Legislative Decree No. 50/2016, as well as based on the tender specifications, which did not contain any exclusionary provision in this regard.

Specifically, “the aforementioned Article 49 (concerning “conditions relating to the GPA and other international agreements”) provides that, where they are covered by Annexes 1, 2, 4 and 5 and the General Notes to Appendix 1 of the GPA and other international agreements by which the European Union is bound, contracting authorities shall apply to works, supplies, services and economic operators of third countries, parties to such agreements, treatment no less favourable than that granted under the Public Contracts Code. These provisions also apply in the case of service concessions and also by virtue of the reference contained in Article 164 of Legislative Decree No. 50/2016 to the rules concerning the exclusions of competitors.”

In this sense, it is well known that the accession of the United Kingdom to the WTO Agreement on Government Procurement (GPA) and the Agreement on Cooperation in Government Procurement between the European Union and the United Kingdom reserve to the goods, services and supplies of the United Kingdom a treatment no less favourable than that granted by the European Union to its own operators. As regards contracts not covered by the European Union’s commitments under the GPA, UK economic operators are subject to the same rules as any third-country tenderer.

In particular, “economic operators from third countries that do not have any agreement providing for the opening up of the EU procurement market, or whose goods, services and works are not covered by such an agreement, do not have guaranteed access to procurement procedures in the EU and may be excluded” (see Commission Communication, “Guidelines on the participation of bidders and goods from third countries in the EU procurement market” (2019/C 271/02)).

In other words, the Regional Administrative Court acknowledged that the access of economic operators from third countries to the EU procurement market is not prohibited, but is only “not guaranteed”.

Ultimately, the Administrative Court rejected the cross-appeal, finding that the tender notice published by the contracting authority did not contain any provisions excluding the participation of companies based in non-EU countries (other than those belonging to the EU), thus clarifying that not even “the reference to requirements governed by Italian legislation cannot, as the cross-appellant claims, be interpreted as excluding the participation of entities belonging to non-EU countries, since, on the contrary, an explicit reference [in the tender specifications] to the exclusion of such entities is necessary”.

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