EU-UK Trade and Cooperation Agreement (TCA) - Procurement Chapter

When the UK left the EU single market, UK suppliers lost the automatic rights they had enjoyed under EU procurement directives. The Trade and Cooperation Agreement (TCA), signed on 24 December 2020 and provisionally applied from 1 January 2021, replaced those rights with a new framework. The TCA's procurement chapter is one of the more detailed parts of the agreement, but it creates a relationship that is materially different from, and more restricted than, the access the UK enjoyed as an EU member.

What is the EU-UK Trade and Cooperation Agreement Procurement Chapter?

The TCA procurement chapter is contained in Title VI of Part Two of the agreement (Heading One: Trade). It draws heavily on the structure of the WTO Government Procurement Agreement (GPA), which both the EU and the UK are signatories to independently. The TCA goes beyond the GPA in some respects but does not replicate the depth of access that EU membership provided.

Key features of the TCA procurement chapter include:

Market access commitments. Both sides have listed the contracting authorities and entities whose contracts are covered by the chapter, along with the financial thresholds above which the market access obligations apply. These lists are annexed to the agreement and broadly reflect each side's GPA coverage, with some additional entities included by mutual agreement.

Non-discrimination. The TCA requires that each side treat suppliers from the other party no less favourably than its own domestic suppliers, for contracts covered by the chapter. This mirrors the GPA non-discrimination standard. It does not, however, import the broader Treaty on the Functioning of the European Union (TFEU) freedoms that applied during EU membership.

Procedural rules. The chapter sets minimum procedural requirements including publication of contract notices, minimum time limits, and the right of unsuccessful tenderers to receive a debrief. These are broadly aligned with GPA standards rather than the more detailed requirements of Directive 2014/24/EU.

Remedies. Both sides must maintain effective challenge mechanisms for suppliers who believe a procurement has been conducted in breach of the chapter's obligations. For UK suppliers seeking to challenge an EU award, remedies are through the national review body of the relevant member state. For EU suppliers in the UK, the challenge route is the UK's Procurement Review Unit or the courts.

No automatic recognition of certificates. Unlike the EU single market framework, the TCA does not create automatic mutual recognition of qualifications. UK suppliers bidding in the EU must demonstrate equivalence of their certificates and qualifications under the rules of the relevant member state.

Why it matters for bidders

For UK suppliers, the TCA procurement chapter preserves market access for above-threshold contracts covered by the chapter, but it requires more administrative preparation than was necessary during EU membership. The ESPD is an EU instrument and UK suppliers have no legal entitlement to use it as a substitute for national certificates in EU procurements (though individual contracting authorities may accept it). UK suppliers should budget for certificate translation, equivalence demonstrations, and potentially longer qualification processes when bidding into EU member states.

For EU suppliers bidding into the UK, the landscape similarly changed. The UK's Procurement Act 2023 (which replaced the previous EU-derived procurement regulations) includes market access provisions consistent with the TCA, but the procedural framework is now specifically UK-designed rather than EU-derived.

Example

A German software company bids for a contract published by a UK government department. The contract value is above the TCA threshold for central government contracts. Under the TCA, the UK department cannot discriminate against the German company on the basis of its nationality and must follow the procedural rules set out in the chapter. However, the German company cannot rely on EU ESPD rights and must comply with whatever documentary requirements the UK Procurement Act 2023 framework specifies.

Frequently Asked Questions

Is the TCA procurement chapter the same as EU single market access?

No. EU single market access was based on EU treaty freedoms and directives that applied comprehensively to all EU contracting authorities across all contract types above threshold. The TCA chapter covers a defined list of entities and contract types, uses GPA-style standards rather than the deeper EU directive framework, and does not carry the treaty-level non-discrimination obligations of the TFEU.

Which UK contracts are covered by the TCA procurement chapter?

The covered entities are listed in the TCA annexes. Central government departments are covered. Many sub-central bodies, utilities, and devolved administration contracts follow the GPA annex coverage, which is narrower than the EU directive coverage. Suppliers should check the annex lists rather than assuming that all UK public contracts are covered.

Can UK suppliers use TED to find EU opportunities?

Yes. TED publication of above-threshold contract notices is an EU obligation under the directives, and EU member states must publish regardless of who might bid. UK suppliers can monitor TED and respond to contracts covered by the TCA chapter. The access right exists; the administrative steps to qualify are more demanding than during EU membership.