The Road To Reform Section 1

Introduction

On 6 December 2021 the government published its response to the Green Paper on proposed reform to public procurement. A link to the response can be found here.

This is the first in a series of articles which the procurement law team at Bevan Brittan LLP are producing on what the proposed reforms will mean for the public sector and suppliers. Each article will give practical commentary on the different themes within the proposed reforms.

Here is a menu of what we will be covering, with links to each Part which will become live once each Part is published:

• Section 1 - An overview
• Section 2 - Principles and objectives, the National Procurement Policy Statement and the PRU
• Section 3 - Single set of Regulations with exemptions, interface with health procurement, light touch regime and concessions
• Section 4 - New procedures, including for urgent procurements, emphasis on pre-market engagement and planning
• Section 5 - Evaluation (MAT not MEAT), links to NPPS and other legislation
• Section 6 - Exclusion: grounds for exclusion, debarment register, past performance and supplier registration system
• Section 7 - Purchasing tools – new DPS+, new rules for open and closed frameworks
• Section 8 - Transparency – notices, debriefing, what has to be published and Open Contracting Data Standard
• Section 9 - Remedies: reforms to Court process, no independent review up front by the authority, disclosure, new test for automatic suspension, no cap on damages, no tribunal and alternative route via PRU
• Section 10 - Contract Management: prompt payment, amendments to contracts after signature.

An overview

As we reported on 6 December 2021[1], the next step along the road to reform will be the anticipated publication of the Procurement Bill. This could be any time in this parliamentary session and publication depends on the parliamentary timetable. The Bill will have to follow the parliamentary process before it becomes law, which includes a first and second reading in the House of Commons, detailed scrutiny at Committee stage, and approval by the House of Lords. Only once it has passed all of these stages will it become law. The government has confirmed that changes to be introduced will not come into effect until 2023. In order to get ready for reform, both the public sector and suppliers should start to familiarise themselves with the anticipated changes.

Having taken on board the range of views from the consultation, the response confirms the Government’s intended approach on a number of issues, and therefore provides a clear direction of travel for the new legislation. Key themes include:

• Simplification of the current legislation into a single, uniform regulatory framework, albeit retaining flexibilities for utilities and ensuring security concerns are addressed for defence contracts.

• Retention of the light touch regime, based on concerns raised about removing it.

• Strengthening of the approach to exclusion of suppliers for misconduct, and recognition of a clearer framework for exclusion.

• Detailed guidance is to be published on how contracting authorities will implement transparency requirements.

• What will not have to be published?

• Remedies
  • The proposal to cap damages in procurement challenges has not been taken forward.
  • The focus will be on faster procurement challenges through procedural reforms.

If you would like to discuss this topic in more detail, please contact Emily Heard, Partner.

[1] Public Procurement reform: Green Paper consultation response | Bevan Brittan LLP