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18/09/2019
It is our understanding that the deadline for submitting a tender in your case is before Brexit, which means that UK based companies might submit a tender, both alone and as member of a consortium. On the other hand, as the award and the signature of the contract will probably take place after Brexit date, in case of a hard Brexit, the UK member of the consortium will not fulfil the accessibility criteria for tendering anymore. Our understanding is that the members of the consortium, as a general rule, shall remain the same during the whole procedure and even during the contract execution. This would also imply that the non-qualification of one member of the consortium would disqualify the whole consortium. The only possibility to save the tender in this case is when the members of the consortium, even without the UK company, would be able to fulfil all selection and award criteria, the UK based company is not presented as member performing critical tasks and the contract would have been awarded to this consortium even without taking into consideration the experience, capacity, etc. of the UK-based member of the group. On the basis of the offer received, the authorising officer service will have to justify why the member in question is not performing critical tasks and that the contract could be awarded without taking into account the participation of the UK based company. If all e above criteria are met, we can imagine a situation that the UK-based member of the consortium withdraws and the contract is still awarded to the consortium. However, evidently, no case law exists on this is issue and therefore this answer is also only a hypothetical solution.
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