On 15 December 2020, with just over two weeks until Brexit, the Government published its Green Paper: Transforming public procurement (the Green Paper).
The Green Paper states that the end of the transition period “provides an historic opportunity to overhaul our outdated public procurement regime”. There now begins a public consultation process enabling comment on the proposed reforms. The Green Paper is divided into eight chapters, with questions posed at the end of each chapter. For ease, the questions can be accessed in a separate Consultation Questions document. The consultation period ends on 10 March 2021 and responses can be sent to this Cabinet Office email address.
The Government intends the reforms to speed up and simplify the UK’s procurement processes and it will enshrine in new legislation six principles of public procurement: public good, value for money, transparency, integrity, fair treatment of suppliers and non-discrimination.
The Green Paper states that the £290bn of public money spent through public procurement every year in the UK should support the Government’s priorities to boost growth and productivity, help communities recover from COVID-19 and tackle climate change. Several times the Green Paper refers to “a clear golden thread” linking these priorities through to the procurement life cycle.
Some more of the key proposed reforms in the Green Paper are summarised below.
- Establishing a new unit within the Cabinet Office, supported by an independent panel of experts, to oversee public procurement with powers to review and, if necessary, intervene.
- Requiring contracting authorities to have regard to the Government’s strategic priorities for public procurement in a new National Procurement Policy Statement.
- To create a simpler regulatory framework by rationalising and clarifying existing procurement regulations (Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016 and the Defence and Security Public Contracts Regulations 2011) and integrating them into a single, uniform set of rules.
- Replacing existing procurement procedures (currently eight) with three “simple, modern procedures” and dispensing with the Light Touch Regime:
- A new flexible procedure permitting negotiation;
- An open procedure for more “off the shelf” requirements;
- A limited tendering procedure that can be used in certain situations, including crisis and extreme urgency. Note that it will be mandatory to publish a notice when a decision is made to use the limited tendering procedure.
- Having a single digital platform for supplier registration.
- Legislating for a new Dynamic Purchasing System (DPS+) for all types of procurement and for new types of framework agreement such as an open framework with a maximum term of eight years and multiple joining points.
- Legislating to require all contracting authorities to implement the Open Contracting Data Standard so that procurement life cycle data across the whole public sector can be shared and analysed.
- Introduction of a new requirement to publish contract amendment notices.
- Introduction of ‘crisis’ as a new ground on which limited tendering can be used. Note that, providing the proper process for contracts let under the new crisis provision (and extreme urgency) has been followed, such contracts would be excluded from the risk of automatic suspension preventing contract award.
- Allowing buyers to include criteria that go beyond the subject matter of the contract and encourage suppliers to operate in a way that contributes to economic, social and environmental outcomes on the basis of the ‘most advantageous tender’.
- Giving buyers tools to properly take account of a bidder’s past performance (rather than relying on a buyer’s self declaration) and exclude them if they clearly do not have the capability to deliver.
- Exploring the introduction of a central debarment list of suppliers to make it easier for contracting authorities to identify bidders that should be excluded from public procurement.
- Reforming the process for challenging procurement decisions to speed up the review system.
- Focusing remedies onto pre-contractual measures and capping the level of damages for bidders.
As well as a new requirement that contract amendment information should always be published (subject to certain exemptions), mentioned above, there are also proposals to allow more flexibility to amend contracts in times of crisis or extreme urgency.
The Government says it recognises that contracting authorities’ commercial teams will need the necessary skills, capability and capacity to realise the benefits of any procurement reforms. With that in mind, to help support commercial teams the Government says it will provide a programme of training and guidance on the reforms, with the caveat that this is “subject to future funding decisions”.
Birketts has a specialist Public Sector Team and works extensively with local authorities and their partners. For further information regarding the above, please contact Siobhan Collis or another member of the Public Sector Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2020.