In December 2020 the Cabinet Office set out proposals for the future of public procurement in its Transforming Public Procurement green paper. It sought views as to how procurement can be improved given the new-found freedoms following our exit from the EU. On 6 December 2021 the Cabinet Office released its response to the consultation.
For councils there’s much to welcome. Firstly, there are a number of things that were in the green paper but which will not be taken forward. Of these the decision not to remove the light touch regime under which much of social care services are procured, is a welcome decision. Bringing all of these types of services into the main regime would have increased the administrative burden on authorities. Also the proposal in relation to an oversight unit has been scaled back with the intention to build on the powers of investigation already given to the Public Procurement Review Service. There were concerns that such a unit would impact on councils disproportionately, causing time to be spent on dealing with investigations, rather actually delivering improvements in procurement and delivery.
The green paper proposed enshrining in law principles of public procurement: the public good, value for money, transparency, integrity, fair treatment of suppliers and non-discrimination. The response confirmed the adoption of this proposal however, these will be split into principles and statutory objectives. It’s not clear yet what this difference will mean in practice. It does however, mean that when constructing, delivering and awarding procurements, councils will have to be cognisant of a wider number of underpinning principles than currently.
We can see that a small but important part of how these new changes will be implemented is not by way of specific legislation but by way of statutory guidance. Given recent case law the importance of this type of guidance can’t be underestimated and procurement professionals will need to be very aware of what these say and government will need to ensure the robustness of the guidance.
There are significant changes to how bidder exclusion will work, the specific exclusion criteria will be reworked so that there is more power to exclude bidders who are a genuine risk to the good order of public procurement. Exclusion for poor past performance is too difficult at the moment, the response confirms there will be improvements here. Further clarity is given to the proposals around a central debarment list for errant bidders.
Contract modifications are often a concern for councils. The response confirms there will be greater clarity and upfront transparency. This will include obligations around transparency pre change and more clarity with the current safe harbours. They continue to consider how best to address amendments in long-term complex contracts.
Whist there has been some backtracking, the ambition in the green paper to improve the remedies aspect of procurement system remains. The Government will continue to explore options around changes to reduce costs and speed litigation up.
Finally, the response emphasises the importance of transparency and will seek to deliver this in the Bill. Whilst standstill letters in their current form will no longer be required, more award information will be made available publicly prior to award. Additionally, specific evaluation information will have to be made available to the unsuccessful bidders in excess of what is currently required. Councils will need to ensure that processes will deliver the required level of information and clarity around their decision making.
Whilst the new Bill may not be imminent councils could usefully be looking at their processes and record keeping to ensure that the jump to greater transparency will be a smooth one.
Peter Ware is a partner at Browne Jacobson