Public Procurement Reform

Invicta Law’s Wendy Morse looks at the Green Paper consultation response and what it means for public procurement in the UK.

On 6 December 2021 the Cabinet Office published its’ response to the consultation on proposals to reform UK public procurement law, which can be viewed here: Transforming Public Procurement – Government response to consultation – GOV.UK (www.gov.uk). The consultation ran between 15 December 2020 and 10 March 2021 and received some 619 responses, a breakdown of which can be viewed in the Cabinet Office’s response.

Procurement Bill

The publication of the response to the consultation lays the groundwork for the Procurement Bill: it is envisaged that the Bill will become law in 2023. It will set out a new framework for the regulation of public procurement and will replace the:

• Public Contracts Regulations 2015;
• Concessions Contracts Regulations 2016;
• Utilities Contracts Regulations 2016;
• Defence and Security Public Contracts Regulations 2011.

Key themes in brief

Most respondents agreed with the proposal to simplify the current legislation, as far as possible, into a single, uniform regulatory framework. The intention being to make it simpler for suppliers to engage with the public sector. Concerns raised by the utilities and defence sectors would be addressed through the retention of certain flexibilities for utilities from the current regulations and the inclusion of certain exemptions for defence procurements.

The light touch regime will now be retained following additional stakeholder engagement but there are plans to make some improvements to its scope and application.

There is to be a strengthening of approach to excluding suppliers for misconduct such as fraud, corruption, and poor performance. A new exclusions framework will be introduced to address concerns raised around the current regime to make it simpler, clearer, and more focused on those suppliers that pose an unacceptable risk to effective competition for contracts, reliable delivery, the protection of the public, the environment, public funds, national security interests or the rights of employees.

Guidance will be published on how contracting authorities will implement the transparency requirements. The requirements will be proportionate to the procurement being carried out and will be simple to implement.

The existing powers of investigation by the Minister for the Cabinet Office will be built upon, with the introduction of a duty for contracting authorities to implement recommendations to address non-compliance with procurement law where breaches have been identified.

The Government does not intend to introduce a cap on the damages available to an aggrieved bidder: the consultation question received mixed responses and following further consultation it was felt that introducing a cap could result in unintended consequences that would be more problematic than those the cap was seeking to address.

 

Preparing for the reforms – practical steps

The consultation response next steps section advises that, whilst it is not yet possible to say exactly when the new regime will come into force, the Cabinet Office intends to give 6 months’ notice of ‘go live’ once the legislation has been concluded. This lead in time is to support effective implementation given the significant scale of the change.

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Whilst 2023 may seem some way off yet, as contracting authorities it is never too early to begin preparations. You could start forming your internal project teams to identify and scope the work required to be ready. You could make a start by making a list of all your relevant internal documents, your Constitution, Contracts and Procurement Standing Orders, Procurement Policy documentation, contract templates and associated guidance. In addition to mapping all the relevant stakeholders for the documents identified and working out the applicable internal governance routes to obtain the necessary approvals of the scale of the changes required.

Also, as another of the consultation responses highlighted, whilst there will be key work required around training and knowledge transfer for internal teams some of this will require a behavioural change too for some organisations. This may in part depend upon how you have your commissioning arrangements structured internally, the level of resource allocated to undertake procurement and for effective contract management post contract award. Start considering your teams needs: identify any development needs or skills gaps overall within teams, and consider any further recruitment or training required.

 

Invicta support

Invicta Law’s Corporate and Commercial team would be happy to support your authority with being reform ready, so that you are in the best place you can be when the big red ‘go live’ button is eventually pushed.

We deliver high quality commercial legal advice at competitive rates.

If you would like to discuss this in further detail and see how we can assist please contact Wendy Morse, Head of Corporate and Commercial Group, for more information:

Wendy Morse: 01622 392133 or at wendy.morse@invicta.law

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute, professional legal advice. Invicta Law Limited cannot accept responsibility for any loss arising because of acts taken by the reader in respect of this article.