Green Paper: Transforming Public Procurement – The UK Government’s response to consultation
In December 2020 the UK Government set out proposals for shaping the future of public procurement with the publication of “Green Paper: Transforming Public Procurement” (you can find our previous article here: UK Government’s Green Paper: Transforming Public Procurement). The Government published its response to the consultation in late 2021.
The consultation process involved the Cabinet Office engaging with over 500 stakeholders and organisations through discussions and workshops. In response to the consultation, the Government has clarified or amended some of the proposals based on the feedback received, whilst other proposals will not be changed.
Overall, there was a high level of support for the proposed reforms. The ambition and breadth of the package of proposals were recognised alongside the significant scale of change to the procurement regime. The proposed reforms are covered in eight chapters in the Green Paper:
Chapter 1: Procurement that better meets the UK’s needs
The six principles of public procurement proposed by the Green Paper (public good, value for money, transparency, integrity, fair treatment of suppliers and non-discrimination) were met with a clear majority (92%) of respondents in favour. The Government intends to introduce the proposed principles into legislation with some amendments in response to the consultation.
The proposal for a new unit to oversee public procurement with powers to review and, if necessary, intervene with contracting authorities’ compliance with the procurement regulations was met with support from just over half (52%) of the respondents. The feedback recognised the need for stronger regulatory oversight of public procurement, however there were reservations over how a central oversight body would operate effectively. The Government has revised the proposals for this new unit, which will be known as the Procurement Review Unit (PRU). The PRU will deliver the same service as the Public Procurement Review Service (PPRS) however, the PRU’s prime purpose will be to address systemic or institutional breaches of public procurement law.
Chapter 2: A simpler regulatory framework
The Green Paper proposed integrating the current procurement regulations (the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016 and Defence and Security Public Contracts Regulations 2011) into a single, uniform framework. This was met with a clear majority (81%) of support from the respondents. The Government believes that by combining the current regulations into a single, uniform framework will remove duplication and make procurement more agile and flexible.
Chapter 3: Using the right procurement procedures
The Green Paper proposed an overhaul of the procurement procedures with three new modern procedures: a new ‘flexible competitive procedure’, an ‘open procedure’ that buyers can use for ‘off the shelf’ competitions and a ‘limited tendering procedure’ that buyers can use in circumstances such as extreme urgency. It also proposed including ‘crisis’ as a new ground on which limited tendering can be used and to remove the Light Touch Regime as a method of awarding contracts. These proposals were met with 50% of respondents in support, 6% opposed and 44% inconclusive.
The concerns were that the new ‘flexible competitive procedure’ could introduce further complexity and that the removal of the Light Touch Regime would result in more services being subject to the full procurement regime. In response, the Government has stated they will issue guidance to support the new competitive flexible procedure and will retain the Light Touch Regime with some amendments.
Chapter 4: Awarding the right contract to the right supplier
The proposal to base the award of a contract on the “most advantageous tender” (“MAT”) rather than the “most economically advantageous tender” (“MEAT”) was met with a clear majority (77%) in support. This should allow buyers more flexibility to base their selection criteria on factors which are not necessarily dominated by pricing consideration alone.
Chapter 5: Using the best commercial purchasing tools
The proposed new Dynamic Purchasing System (DPS+) was met with 70% of respondents in support with some concerns raised over the implications of allowing the DPS+ to be open with no maximum duration.
Chapter 6: Ensuring open and transparent contracting
The proposed Open Contracting Data Standard was met with a clear majority of 91% of respondents in support. The Government intends to introduce most of these proposals into legislation to enable greater transparency and provide a level playing field for suppliers.
Chapter 7: Fair and fast challenges to procurement decisions
The Green Paper proposed reforms aimed at speeding up the resolution of challenges to deliver a faster, cheaper and more accessible review system. 80% of respondents were in support of this proposal. However, respondents also raised concerns that this could lead to more challenges and speculative claims.
The proposed cap on awards of damages was met with mixed views. The Government has decided to not introduce this proposal.
Chapter 8: Effective contract management
The Green Paper proposed legislation to:
- Tackle payment delays in public sector supply chains.
- Allow more flexibility to amend contracts in times of crisis.
- Introduce a new requirement to publish contract amendment notices, and,
- Cap the profits made by incumbents following on from contract extensions.
There was a clear majority (79%) in favour of the suggested legislation in these areas. The Government intends to introduce this proposal into legislation save for the proposal to cap profits on contract extensions.
The Government’s response to the consultation process suggests that any new public procurement regime is unlikely to come into force in England until 2023 at the earliest following on from the publication of a White Paper or Bill.