In December 2020, the UK Government Cabinet Office set out proposals for shaping the future of public procurement legislation with the publication of a Green Paper, Transforming Public Procurement.Preview (opens in a new tab)
The overarching goals of these proposals were to speed up and simplify the Government procurement processes, in their words, ‘placing value for money at their heart, generate social value and unleash opportunities for small businesses, charities, and social enterprises to innovate in public service delivery.’
Through 2021 the consultancy process has been completed, and just before the Christmas break, the Government released the findings, a summation of which is here:
- Most respondents agreed with the proposals to simplify the current procurement legislation as far as possible into a single, uniform regulatory framework and agreed this would make things easier for suppliers engaging with the public sector.
- The Green Paper proposed the removal of the Light Touch Regime. A number of respondents raised concerns about certain contracts (such as care provision or special education) which, coupled with the proposed lowering of contract value thresholds bringing more contracts within the scope of the new regime, would remove necessary flexibility. In light of additional stakeholder engagement, the Government agree it is helpful to retain the Light Touch Regime, but plan to make some improvements to its scope and application
- A series of changes to strengthen the approach to the exclusion of suppliers from procurements for misconduct such as fraud, corruption, or poor performance were proposed.Feedback on these proposals was largely positive and we intend to take most of them forward. However, it was clear from the consultation responses and further engagement with stakeholders that in addition to these changes, a wider refresh of the legal framework for exclusions is needed.
- There was broad support for the focus on increasing transparency, with respondents recognising the importance of a transparent procurement regime. However, some respondents raised concerns around the parameters of transparency and the potential burden it could place on contracting authorities, slowing down processes and decision-making. Having considered these views and following additional engagement with stakeholders, the Government intends to ensure the transparency requirements are proportionate to the procurements being carried out and are simple to implement. Detailed guidance will also be published to support contracting authorities with implementing these requirements soon, and we’ll have more to share on this, then.
- The Green Paper proposed capping the level of damages available to bidders that successfully challenge a contract award decision. There were mixed views on this proposal with some respondents agreeing this would discourage speculative challenges, however, others highlighted potential unintended consequences which could slow down procurement processes and ultimately increase the cost to the public purse. Following additional engagement with stakeholders, the Government will not be taking this proposal forward, but is considering other measures aimed at resolving disputes faster which would reduce the need to pay compensatory damages to losing bidders after contracts have been signed.
- Many respondents recognised the need for a level of monitoring of compliance with the new procurement regime. However, some respondents raised concerns about the proposed new unit that would oversee the integrity of the public procurement system, in particular its interaction with existing governance in local government and the regulated utilities sector, as well as how it would operate alongside a formal route of challenge. The Government intends to amend this proposal to build on existing powers of investigation by the Minister for the Cabinet Office and to introduce a duty for contracting authorities to implement recommendations to address non-compliance of procurement law, where breaches have been identified.
The Green Paper also included proposals to balance the need to procure quickly in times where measures are needed to protect life, with the need for appropriate safeguards and transparency. These proposals were designed to provide greater certainty for public bodies in these circumstances.
The key proposal was that there will be a requirement to publish a transparency notice whenever a decision is made to award a contract under this procedure. This would require public bodies to demonstrate clearly their justification for not undertaking a full competitive procurement procedure, in addition to publishing a contract award notice, which the Government plan to retain from the existing regulations.
In its commentary of the results of the paper, the Government states “we accept there are lessons to be learned in responding to this unprecedented global pandemic. In September 2020 the Cabinet Office commissioned a report to consider the government’s communications procurement processes and the way in which some contracts were awarded during the early stages of the response to the pandemic, in order to learn lessons and improve our processes for the future.”
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Image thanks to Kid Circus.