Yesterday the Cabinet Office published its response to a consultation on proposals for reform to public procurement law as detailed in the Green Paper entitled 'Transforming Public Procurement'.
The published response indicates the direction that new public procurement regime will take. The regime will replace the existing Public Contracts Regulations 2015, as well as the Concessions Contracts Regulations 2016 and the Utilities Contracts Regulations 2016.
Responses to the consultation were provided across local government, housing, health and social care and education sectors.
The key takeaways from the consultation response are summarised below:
- Responses seemed in support of the proposals to simplify existing regulations into a 'single, uniform regulatory framework'.
- The Green Paper proposed the removal of the light touch regime for social, health, education and other services. However, following concerns raised in responses, it has been confirmed that an equivalent regime will be retained with an improved scope and application - at this stage, there is little detail on the likely amendments.
- The Cabinet Office intends to take forward most of its proposals to strengthen exclusion of suppliers based on fraud, corruption or poor performance. More generally, it has also concluded a wider refresh of the legal framework for exclusions is required, to include the removal of existing ambiguities and which is intended to be simpler and clearer.
- Proposals intended to improve transparency will be taken forward, including procedural obligations relating to publications at each stage of the procurement process.
- The proposed cap to damages in procurement challenges will not be taken forward; instead, the Cabinet Office indicates it is considering alternative measures aimed at faster resolution of disputes. It is hoped those measures will reduce the need to pay compensation to unsuccessful tenderers after contracts have been signed, but no information about how this can be achieved is included.
- Contract extensions entered into as a result of the incumbent supplier's challenge to a new contract award will not be subject to a cap on profits, as initially outlined in the Green Paper.
- The proposals to use a tribunal to deal with low-value public procurement claims and issues will also not be taken forward.
It is anticipated that the new Procurement Bill will become law in 2023, and the Cabinet Office intends to provide six months notice to allow organisations time to make preparations. It also has indicated that it will publish both statutory and non-statutory guidance on the key elements of the regime, with a programme of learning and development being subject to future funding.
It will be interesting to see how the proposals will evolve as a result of the consultation. The equivalent yet improved light touch regime will be welcomed by many, however, it is difficult to understand the intended 'scope and application' without more detail. Similarly, the 'alternative measures' for faster dispute resolution remain uncertain at this stage, and it is difficult to determine how they would reduce the need for compensatory damages after the contract signature and in particular what remedy other than damages would be appropriate.
With the Green Paper acknowledging that faster and more effective public procurement can only be delivered where contracting authorities have the capability and capacity to realise the benefits, I will be interested to see the level and content of training and guidance provided around the time the new public procurement regime becomes law, particularly as the extent of this may be at the mercy of what future funding is made available.
The Green Paper sought feedback from stakeholders who will be involved in the new regime. This document summarises the feedback received to the consultation and provides the Government’s response to each individual question.