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Procurement rule changes on the way

21 June 2021 | Ken McEwan

On the 15th of December 2020, the UK government had published the “Green Paper” that set out the proposed changes to the public procurement regime in England, Wales, Scotland, and Northern Ireland. The new framework is based on the rules set out in the WTO Agreement on Government Procurement, or GPA, which includes the principles of non-discrimination, transparency, and impartiality.

The proposals in the Green Paper are “intended to shape the future of public procurement in this country for many years to come. The Government’s goal is to speed up and simplify our procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery. The current regimes for awarding public contracts are too restrictive with too much red tape for buyers and suppliers alike, which results in attention being focused on the wrong activities rather than value and transparency.” –  GOV.UK.

Within my previous article I had set out how in its immediate aftermath, Brexit had little effect on the procurement regime, read here for more details.

The new rules, outlined by the Green Paper are said to encompass the following principles:

  • Public good, supporting the strategic national priorities of, economic, social, ethical, environmental, and public safety.
  • Value for money, that ensure a “whole life blend” of economy and efficiency aimed at achieving the intended business case.
  • Aimed at ensuring accountability, anti-corruption, and effectiveness of the procurement process.
  • Ensuring good management and prevention of misconduct.
  • The fair treatment of suppliers.
  • Non-Discrimination.

A simpler framework

The existing plethora of regulations will to be consolidated into one group of regulations, with a common set of main rules. There will now be only three procedures rather than the existing seven:

  • A new competitive procedure giving purchasers the right to obtain the best from private, charity and the social enterprise sectors.
  • An open procedure which enables buyers for simpler “off the shelf” competitions.
  • A retained negotiated procedure without prior publication which will be called limited tendering procedure.

Social, health and education

These simplified procedures include removing the Light Touch Regime (LTR) and applying the same rules to LTR services that will apply to other contracts for service. Meaning authorities no longer have to consider whether LTR applies.

Purchasing tools

The proposals will see the introduction of a new purchasing tool, DPS+, to replace dynamic purchasing systems which could be used for all types of procurement and not just common goods and services like at present.

Fair and fast challenges to procurement decisions

New Civil Procedure Rules will be created for hearing procurement legal challenges, principally:

  • A new fast track procedure.
  • The presumption that certain types of claims would be reviewed on the basis of written pleadings only.
  • New rules on disclosure.
  • The introduction of a tribunal system for certain types of challenges.
  • Restrictions on the number of damages that can be awarded.

The Green Paper is only a discussion document and has been the subject of widespread comment. It remains to be seen how many of these proposals will survive Parliamentary scrutiny and find their way into the final legislation. So, watch this space.

Specialist public procurement solicitors

Our specialist team of public 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

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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