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Relevant information for companies affected by Brexit
After the agreement between the European Union and the United Kingdom was reached on 24 December 2020
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Clarification of the scope and applicable regulations
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It should be noted that for the purposes of the text that follows the expression "public procurement" or "public procurement procedures" should be comprehensevely read as including all award procedures subject to Law 9/2017, of 8th November, on Public Sector Contracts, transposing Directives 2014/23/EU and 2014/24/EU, of 26 February 2014, of the European Parliament and the Council into Spanish law; Royal Decree-Law 3/2020, of 4th February, on urgent measures transposing into Spanish law various European Union directives in the field of public procurement in certain sectors; private insurance; pension plans and funds; taxation and tax litigation; and Law 24/2011, of 1st August, on public sector contracts in the fields of defence and security.
Furthermore for the purporses of the text that follows the expression “Trade and Cooperation Agreement” should comprehensevely read as referred to the Agreement reached by the European Union and the United Kingdom on the 24th December 2020.
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From what date on do the provisions of the Agreement on the withdrawal of the United Kingdom from the European Union cease to apply?
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Conforme al artículo 126 del Acuerdo de Retirada, el periodo de transición finalizará el próximo 31 de diciembre de 2020, momento a partir del cual dejará de ser de aplicación en contratación pública el acervo comunitario.
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What will happen to public procurement files that have been launched in Spain before January the first of 2021 and that have not yet been finalised by the end of the transition period?
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The rules set out in public procurement legislation and its implementing provisions for companies belonging to Member States of the European Union will continue to apply to these cases.
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What will happen with the public procurement files launched in Spain after 31st December 2020?
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The regime provided for in public procurement legislation for natural and legal persons from non Member States of the European Union or States signatories to the Agreement on the European Economic Area will apply to these files. This is without prejudice to the possibility for United Kingdom firms to benefit, where appropriate, from the application of the Trade and Cooperation Agreement and of the World Trade Organization Agreement on Government Procurement
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When is a pocedure considered to have been launched in Spain before the end of the transitional period?
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Tendering procedures shall be considered to have been launched before the end of the transitional period if their notice of call for competition has been published before January the first of 2021. And in the case of a negotiated procedure without prior publication, the procedure shall be considered to have been launched before the end of the transitional period when the contracting authority contacted economic operators in relation with this procedure before January the first of 2021.
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Will there be any restrictions on access by natural or legal persons from United Kingdom to tenders launched after 31 December 2020?
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As indicated above, the regime provided for in public procurement legislation for natural and legal persons from non Member States of the European Union or States signatories to the Agreement on the European Economic Area will apply to these files. This is without prejudice to the possibility for United Kingdom firms to benefit, where appropriate, from the application of the Trade and Cooperation Agreement and of the World Trade Organization Agreement on Government Procurement
It should be noted that in accordance with the provisions of Article 68 of Law 9/2017, of 8 November, on Public Sector Contracts, in general terms, natural or legal persons from non Member States of the European Union or States that are not signatories to the Agreement on the European Economic Area must justify by means of a report (from the Spanish Economic and Commercial Office abroad) that the State of origin of the foreign company allows the participation of Spanish companies in public contracts.
In addition, from the 1st January 2021, at least for contracts covered by the Trade and Cooperation Agreement it will be possible to dispense the report on reciprocity in relation to economic operators from the United Kingdom (for details on which contracts are covered by the Trade and Cooperation Agreement, please see the text of the said Agreement).
As a result, this report shall only be requested to economic operators coming from the United Kingdom in public procurement procedures not covered by the Trade and Cooperation Agreement or by the GPA.
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How does the end of the transitional period affect contracts that were tendered in Spain during the transitional period?
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Contracts awarded before 1 January 2021 will be governed, in terms of their effects, compliance and termination, including their modification, duration and regime of extensions, by the regulations in force when the corresponding contract file was initiated.
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