08/09/2022
The Procurement Bill was introduced on 11 May 2022 and is currently going through the parliamentary process. In this series of Procurement Bill Bytes we take a detailed look at some of the issues and draw out some of the key changes that contracting authorities and suppliers need to get to grips with.
It should be noted that any of the provisions of the Procurement Bill might change as a result of the process of parliamentary approval. If changes occur to the provisions described in this article, we will update it on our website at the appropriate time.
We are really interested in your thoughts on how these reforms will affect you and are particularly keen to hear any questions you may have on the topics covered in our Procurement Bill Bytes. Please send any questions to jessica.boardman@bevanbrittan.com and our procurement team will endeavour to answer as many as we can in our Procurement Bill Bytes Q&A Webinar next month.
This article looks at the new competitive tendering procedures and time limits introduced by the Procurement Bill on 11 May 2022 (the “Bill”) and concludes by suggesting practical steps contracting authorities may wish to take once the Bill is enacted.
We currently have five different competitive tendering procedures under the Public Contracts Regulations 2015 (as amended) (“PCR”) with their own formalities and requirements.
The initial proposed reforms, as set out in the Government’s Green Paper response, looked to streamline the procurement procedures into two simple, flexible modern procedures; this was covered in section 4 of our Road to Reform series, which can be found here.
The Bill stipulates that contracting authorities must carry out a competitive tender procedure before awarding a public contract (section 19(1)). The current version of the Bill sets out the following procedures:
- an “open procedure”; and
- a competitive flexible procedure* (*this term was introduced in the Green Paper but is not adopted in Section 19(2)(b) of the Bill).
Open Procedure
The intention of the reforms was to retain the open procedure, as presently provided by the PCR, as a standard procedure available to contracting authorities and that is the case in the current version of Bill.
Section 19(2)(a) defines an open procedure as “a single-stage tendering procedure without restriction on who can submit tenders”.
Competitive Flexible Procedure
The term “competitive flexible procedure” was used in the Government’s Green Paper response to refer to a flexible procedure, which would allow contracting authorities the freedom to negotiate and innovate the best possible solutions from the market, but this term is not expressly used within the Bill. Instead this procedure is described at section 19(2)(b), in reference to the open procedure, as “such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the public contract.” For simplicity, this article will refer to the procedure as the competitive flexible procedure.
This procedure is non-prescriptive and the Bill contains minimal detailed rules as to how contacting authorities should utilise the procedure. Any rules are limited to those which are needed to ensure compliance with the reformed principles of public procurement and the Agreement on Government Procurement (“GPA”). Nonetheless, contracting authorities will be under an obligation to observe the overarching procurement principles when designing a competitive tendering procedure.
Section 19(3) stipulates that a contracting authority must ensure that the procedure is a proportionate means of awarding the public contract, having regard to the nature, complexity and cost of the contract.
The ability to limit participation numbers during the selection stage or subsequent stages is preserved in the Bill. Much like the PCR, the Bill also provides that suppliers can be excluded by way of conditions of participation at selection questionnaire (“SQ”) and down-selection at SQ or later stages (section 19(5)) and so contracting authorities can build multi-stages into their procurement, has they have done under the PCR.
There are also new express provisions governing the refining of award criteria (section 23) and a more complicated, specified routine for excluding suppliers (section 26-30).
This new procedure will allow for the creation of bespoke structures that contracting authorities may seek to create which may incorporate various features of the four procedures (other than open) under the PCR.
There will be room to combine features and innovate, for example, it will be possible to have a competition under the competitive flexible procedure, which would operate similarly to the restricted procedure as a single tender stage process but utilising negotiations. It would also be possible to replicate the competitive procedure with negotiation, with negotiations engagement prior to initial tenders.
Equally, given the intended non-prescriptive nature of the competitive flexible procedure, it is of course entirely feasible for contracting authorities to design and conduct procurements in replication of the current PCR procedures of restricted, competitive dialogue (CD), competitive procedure with negotiation (CPN) and innovative partnerships if they so wish.
As with the current provisions under the PCR, an opportunity must be transparently advertised regardless of which procedure the contracting authority decides to use.
What will contracting authorities need to do?
The requirements of the Bill that affect the practical conduct of a procurement procedure are too numerous and broad to cover here. However, some key changes that will impact the conduct of procurement exercises, especially in using the competitive flexible procedure, include the new requirements for standstill periods, the publication of notices (as covered in Procurement Bill Byte 2, here) and the degree of discretion authorities will enjoy at various stages of the process (as covered in Procurement Bill Byte 3, here).
Once the Bill is enacted, contracting authorities will need to rethink their procurement exercises and update any existing template procurement documents to refer to the new, streamlined procedures.
The government intends to publish “templates” so there is consistency on suggested and common forms of competitions. Contracting authorities will need to consider these “templates” when they become available and adapt their own template documents in light of them. Contracting authorities will not be confined to these template models and will be able to innovate new forms of competition structures, but the templates will provide a useful structure that can be instantly used and will form a common vocabulary of processes with the supplier market.
There will also be a need to seek procurement advice to ensure that any proposed competition structures are aligned with the new rules and principles.
Time Limits
New time limits to govern the competitive tendering procedures are contained in section 52 of the Bill, with minimum lengths of time provided for both “participation periods” and “tendering periods”. These are new terms introduced in the Procurement Bill.
“Participation period” means the period beginning with the day following the day on which a contracting authority invites the submission of requests to participate in a competitive tendering procedure other than an open procedure and ending with the day by which those requests must be submitted. We would currently understand this to be an SQ application period.
“Tendering period” means the period beginning with the day following the day on which a contracting authority invites the submission of tenders as part of a competitive tendering procedure and ending with the day by which tenders must be submitted.
Currently under the PCR, CPN specifies 30 days for return of initial tenders and there is no stipulated minimum time for return of initial tender for CD.
The new competitive flexible procedure affords contracting authorities a degree of discretion when devising their procurement time limits, provided the shortest minimum periods are adhered to. When use the competitive flexible procedure to replicate the existing CD procedure, the shortest minimum periods listed below will now apply.
Contracting authorities must have regard to an enhanced list of factors when determining appropriate time limits, including the nature and complexity of the procurement; the need for site visits, physical inspections and sub-contracting; the complexity of any modification to the tender notice or tender documents; and the importance of avoiding unnecessary delay. These factors are much alike to the current provision in the PCR, however “sub-contracting” and “avoiding unnecessary delay” are new additions to the Bill.
Participation Period
Section 52(3) provides that any “participation period” must equal or exceed the shortest minimum period, which corresponds with the circumstance specified in the first column of the table below.
|
Circumstance |
Minimum period |
|
The contract being awarded is a light touch contract |
No minimum period |
|
The contracting authority considers there to be a state of urgency that means that a 25 day participation period is impractical |
10 days |
|
Neither of the above circumstances apply |
25 days |
Tendering Period
Section 52(4) provides that any tendering period must equal or exceed the shortest minimum period, which corresponds with the circumstance specified in the first column of the table below.
|
Circumstance |
Minimum period |
|
The contract being awarded is a light touch contract |
No minimum period |
|
A qualifying planned procurement notice has been issued |
10 days |
|
The contracting authority considers there to be a state of urgency that means any other applicable minimum tender period is impractical |
10 days |
|
Tenders may be submitted electronically, and the tender notice and associated tender documents are all provided at the same time |
25 days |
|
Tenders may be submitted electronically, but the tender notice and associated tender documents are not all provided at the same time |
30 days |
|
Tenders may not be submitted electronically, the tender notice and associated tender documents are all provided in the same time |
30 days |
|
Tenders may not be submitted electronically, the tender notice and associated tender documents are not all provided in the same time |
35 days |
Notably, the Bill will permit contracting authorities to defer publication of their tender documents until after the publication of a tender notice, however contracting authorities that do so will need to allow for an additional 5 days to the minimum time period for the return of tenders so bidders have longer to consider the tender requirements. Under the PCR, all tender documents must be released when the contract notice is published as part of the suite of procurement documents; the Bill therefore provides new flexibility to defer the release of tender documents.
If you’ve missed any of the previous bytes in this series, you can find them here:
Procurement Bill Byte 1: Understanding the notices | Bevan Brittan LLP
Procurement Bill Byte 2: Direct Award Justifications | Bevan Brittan LLP
Don’t forget to submit your questions and attend our Q&A webinar, where we’ll be working through any questions people have about the bill.
