Summary of Procurement Bill consultation Part 1

On 19 June 2023, the Cabinet Office published Part 1 of the consultation on draft regulations to implement the Procurement Bill. 

This consultation seeks feedback on the secondary legislation that sits under the Procurement Bill and brings many of its provisions to life with a focus on areas that require further definitions, lists, and calculations for implementation. The consultation is split into two parts with this part 1 of the process concentrating on policy areas which require specific detail in secondary legislation. The second part will cover the transparency provisions, notices that will be used by Contracting Authorities to fulfil their legal requirements under the new Act, information on the proposed approach to transitional arrangements for procurements that are already underway at the time that the new regime enters into force, and the position on other legislation that will need to be amended in order for the full provisions of the Act to take effect.

The deadline for responses to the first part of the consultation is 11:45pm Friday 28 July and should be submitted by completing this survey.

The consultation poses 18 questions on the following subjects:

1. Scope of Light Touch Regime Contracts and Reservable Light Touch Services;
2. Exempt Contracts: Vertical and Horizontal Activities Calculations;
3. Exempt Contracts: Utilities Intra-group Turnover Calculations;
4. Utility Turnover and Supply Tests;
5. Intra-UK Procurement;
6. Definitions of ‘Central Government Authority’ and ‘Works’ for Thresholds;
7. Disapplication of section 17 of the Local Government Act 1988; and
8. Disapplication in regard to NHS procurement.

The Procurement Bill promises to deliver a more transparent and flexible public procurement system, while opening up procurement to new entrants and allowing tougher action on underperforming suppliers. We are generally supportive of it. It was always intended that further detail would be set out in secondary legislation. One issue that we have regularly advised on under the Public Contacts Regulations 2015 is the circumstances in which development agreements are caught by the procurement rules, following a line of cases which establish that a contract for ‘pecuniary interest’, which is included within the current definition of a public works contract, requires there to be an enforceable obligation to develop. The position on this is not entirely clear and unfortunately, even though the same words appear in the Procurement Bill, the draft regulations don’t address this point, which in our view represents a missed opportunity, and we will feed this back as part of our consultation response.