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New government white paper on procurement law

22 July 2022 | Ken McEwan

A new government white paper on procurement law is set to significantly reform the public procurement laws applicable to public bodies in the UK. Head of Procurement, Ken McEwan, explains how the changes will affect the procurement process going forward.

Procurement objectives

The Government has now produced its white paper on procurement law. Following public consultation, its modified proposals  form the basis of a new Procurement Act, which is thought to go live in 2022 or 2023. The following 6 key proposals set out in the green paper have been adopted in the White Paper:

  • Fair treatment of suppliers
  • Non-discrimination
  • Transparency
  • Public good
  • Value for money
  • Integrity
  • Open and fair competition

The principles are targeted to be deliberately in line with international trade agreements, in particular, the Agreement on Government Procurement (GPA).

The Government will continue with its proposal to consolidate all existing competitive procedures to just two, namely, open, and competitive flexible procedures (with a couple of exceptions). Where the flexible procedure is chosen, the contracting authority is required to set out in the call for competition how these will work. For example, how the procedure will function and whether there will be negotiations or dialogue stages. Luckily guidance will be issued to assist those contracting authorities using the procedure.

Granting the right contract to the right supplier

The basis of an award has been changed from the Most Economically Advantageous Tender (MEAT) to Most Advantageous Tender (MAT). The aim is to enable the contracting authorities to consider  broader award criterion, rather than focussing purely on financial benefits. For example, the Government may pass legislation reflecting policy priorities that may not be directly related to the subject matter of a particular contract which means that contracting authorities can pursue considerations which would be prohibited as being non-commercial.

Open and transparent contracting

Two variations of Framework Agreements are proposed, open and closed having a maximum duration of 4 years, whereas open is 8.

Transparency is being encouraged throughout the contract with far more onerous disclosure procedures to be introduced on contracts exceeding £2m. These will include the publication of the following information:

  • KPIs
  • Publication of the contracts
  • Evaluation documents alongside the award notice with some redaction permitted.

Accessible and fast challenges to procurement decisions

The process of challenging procurement decisions is to be reformed. The government will continue to explore faster and more accessible routes through the Technology and Construction Court. The following proposals have survived the consultation process and found their way into the white paper:

  • A single limb test for lifting the automatic suspension
  • Removing the automatic suspension mechanism in cases where there is extreme urgency
  • The requirement to issue standstill letters to all bidders is removed

Specialist procurement solicitors

Our specialist team of procurement solicitors offer a commercially focused approach to advising on all aspects of the procurement process. We offer strategic advice in relation to the management of procurement deals, including complex negotiations and challenging procurement decisions. For further information on this topic, please contact Ken McEwan on 0117 906 9400 or email k.mcewan@gl.law. Alternatively, please complete our contact form.  

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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