Planned reforms to public procurement
Queen’s Speech confirms planned reforms to the public procurement rules
In December 2020 the Cabinet Office published a Green Paper containing proposals for reform of the public procurement rules in the UK. A consultation on the Green Paper closed in March 2021. Whilst the Government is still analysing responses, the Queen’s Speech delivered on 11 May 2021 sets out a brief summary of a planned Procurement Bill, which is expected to be introduced in September 2021. Importantly, the reforms as set out in the Queen’s Speech appear to be the same as those set out in the Green Paper, some of which we welcome, and some about which we have reservations.
A key proposed change is the introduction of a new competitive flexible procedure which will replace a number of the existing procedures including both the restricted procedure and the competitive dialogue. Some people questioned this move away from familiar procurement routes but this is something that we welcome, as authorities will have a lot more freedom. Indeed, they will still be able to run a procedure which is very similar to the existing procedures should they wish.
Another welcome feature is the new open framework, which will allow the introduction of new suppliers at set points in a framework, and over a longer term. Currently framework agreements are closed and are limited to four years’ duration, unlike dynamic purchasing systems. It will be interesting to see the extent to which dynamic purchasing systems will be used following the introduction of open frameworks.
There is also a greater emphasis on social value and environmental considerations, and an ability for authorities to take a wider view when awarding contracts. In addition, reforms will be made to the process for challenging procurement decisions in order to speed up the review system and make it more accessible, while also capping the level of damages available to bidders in order to reduce the attractiveness of speculative claims.
Elements that we are less sure about include a more ‘top-down’ approach and central government control and influence, with a new Cabinet Office unit being set up to oversee procurement which will have powers of intervention, and a new National Procurement Policy Statement (NPPS) to which authorities will have to have regard. It will be interesting to see how prescriptive this is. New transparency requirements will be brought in which will undoubtedly have resource implications. Finally, the new legislation was an opportunity to clarify some aspects of the current regime which doesn’t appear to have been taken e.g. on the circumstances in which the procurement rules do and don’t apply to development agreements.
The Government is moving quickly on its planned reforms to public procurement, aiming to introduce the new Procurement Bill in a matter of months. However, while the planned Procurement Bill is a welcome step in reforming and simplifying public procurement in the UK following the UK’s exit from the EU, the detail of how the Procurement Bill or the NPPS will operate remains to be seen. The Procurement Bill will need to be companied by a framework of clear guidance to support authorities through the transition to new ways of working.
For expert guidance on procurement issues, contact our competition law solicitors.