by Kate Hiller, Team Manager
What can we expect from the upcoming Procurement Bill?
Ever since the UK left the EU, there has been talk of new procurement rules and in December 2020 the Government set out in a green paper its proposals for bringing in procurement reform. A consultation between 15 December 2020 and 10 March 2021 gathered feedback from over 500 stakeholders and organisations and at the end of last year the Government published its response.
So what has the green paper and consultation told us about the upcoming reforms? Some of the changes local authorities can expect to see are:
- A mixture of principles, objectives and obligations – the government proposed a number of principles that would be included, however, following the consultation feedback it is now proposed that some principles will be objectives instead. The government has also made it clear that there will be obligations at each stage of the process that will be separate from the principles and objectives. The terms used are all likely to be familiar to procurement lawyers (value for money, transparency, non-discrimination, etc.) but the key will be getting to grips with which category they fall under and the extent to which they become legal requirements of the process.
- A simpler regulatory framework – it is being proposed that a single, uniform framework replaces the various procurement regulations we have in place currently, covering public contracts, concession contracts, utilities contracts and defence and security contracts. This is unlikely to impact local authorities significantly as in most cases the procurements they are conducting are most likely to be under the Public Contract Regulations 2015, however, when local authorities do need to procure other types of contracts, it may help to not have to get to grips with a new set of regulations. It is also positive that the government is looking to secure integration between local authorities and the NHS in relation to joint commissioning.
- New procedures – the current set of procurement procedures under the various regulations are set to be replaced by 3 ‘modern’ procedures, including the open procedure, a flexible competitive procedure and a limited tendering procedure. Local authorities are likely to be most used to the open procedure as this tends to be the most commonly used procedure, which it seems is set to remain. If local authorities are looking to do something different though, it seems that the new flexible competitive procedure is intended to make it easier to negotiate and innovate. The government was intending to remove the light touch regime, on the basis that the flexible competitive procedure would provide enough flexibility without the need for a separate regime for certain contracts, however, following the consultation it has accepted that it will remain in some form, with a review of which contracts it applies to.
- MAT instead of MEAT – local authorities will be used to awarding contracts on the basis of the ‘most economically advantageous tender’ but the proposal is to remove the economic aspect and award on the basis of the ‘most advantageous tender’. This goes some way to address the inherent conflict between social value objectives and the need to secure an economically advantageous deal. This will hopefully help local authorities with aspirations to award to more local suppliers for the benefit of their community.
The above are just a few of the proposed changes, which are likely to be of most interest to local authorities in their day-to-day procurement activities. In addition to the above, the government is introducing a new Procurement Review Unit (PRU), different grounds for exclusion of bidders, a central debarment list, provisions to be able to take account of bidder past performance and a new DPS+ procedure, as well as court reforms in relation to how procurement challenges are made.
If you are interested to find out more, then the government green paper can be accessed here and the consultation responses here. If you need any specialist advice on any procurement related matters, feel free to contact us on firstname.lastname@example.org.