Introducing the Procurement Bill 2022

Key points for contracting authorities

On 12 May 2022 the Procurement Bill 2022 (the “Bill”) went to the House of Lords to commence its passage through the legislative process. It is anticipated that the eventual Public Procurement Act will be enacted in or around March 2023.

With one hundred and twenty pages, one hundred and sixteen operative provisions and eleven Schedules, the scope of the Bill is far reaching. In this article we highlight the points that are of particular relevance to contracting authorities.

The Cabinet Office’s Procurement Bill Factsheet highlights the fact that it is the government’s aim to use the procurement reforms to assist with its levelling up agenda and to ensure that more public contracts end up with SMEs and local and regional suppliers where this is both possible and appropriate.

The Bill intends to create a simpler and more flexible system of procurement, based on principles of transparency, non-discrimination, value for money, public benefit, transparency and integrity. It is worth noting that the Bill is not a self-contained document. There are a number of important areas which will be subject to secondary legislation in due course, including provisions concerning transparency.

What are the main proposed changes to public procurement that will need to be considered?

The procurement process

The Bill delivers on the Green Paper’s aim to reduce the number of individual procurement processes with a simple and straightforward open procedure for procurements which can be very flexible in nature (Chapter 3, sections 18-39). Direct awards can still be made in certain restricted circumstances including where there is a need to “protect human life” (Chapter 3, sections 40-43).

Value for money

Value for money will still be a high priority although the change in focus from obtaining the “most economically advantageous tender” (“MEAT”) to the “most advantageous tender” (“MAT”) (Chapter 2, section 18(1)) is aimed to ensure that contracting authorities are able to take into account other factors as well as price including social and environmental issues.

Exclusion of suppliers

The Bill also sets out a new framework for the exclusion of suppliers from participating in public procurements and receiving public contract awards with the establishment of a central debarment register (Chapter 6, sections 56-61). There will also be a single digital platform for suppliers to register their details for all potential bids along with a transparency platform, which enables all potential suppliers to see all potential opportunities via one single gateway.

What has been excluded?

However, the Bill also holds back from pushing forward with all the proposed changes set out in the Green Paper. For example, the proposed cap on damages awards for procurement challenges has been dropped. The main remedies currently available to challengers will all remain in largely unamended form. Despite the attempt to simplify matters there will also be a larger number of notices for procurement professionals to get to grips with. Twelve different types of notices are mentioned in the Bill.

The consolidation of legislation

The Bill and the eventual Procurement Act will replace a number of separate public procurement regulations including the Public Contract Regulations 2015, the Defence and Security Public Contracts Regulations 2011, the Concessions Contracts Regulations 2016 and the Utilities Contracts Regulations 2016.

Will the Bill result in a positive change for public procurement?

We view that it will as the Bill largely remains faithful to most of the principles set out in the original Green Paper – “Transforming Public Procurement” which was published on 15 December 2000.

Much of the wording used in the Bill will be quite familiar to procurement practitioners. However, some areas in the Bill use much more straightforward language than, for example, the Public Procurement Regulations 2015. Many non-lawyers may welcome this. However, only time will tell whether this ostensibly more utilitarian language will lead to clarity rather than to arguments over interpretation and meaning.

The Bill is intended to (and will) change the landscape of public procurement in England, Wales and Northern Ireland. Scotland is likely to continue under its own separate regime which we view will be closely aligned to the position in England, Wales and Northern Ireland. However, public procurement under the eventual Procurement Act will still be subject to international agreements concerning public procurement including the WTO’s Agreement on Government Procurement (Chapter 6, sections 81-83).

Procurement professionals should continue to watch the progress of the Bill as its moves through the legislative process. However, it is also important to remember that until the Bill becomes the Procurement Act, the current regulations and case law will continue to apply to all relevant procurement processes.

Contact a specialist procurement solicitor

To discuss how the proposed changes to procurement law will affect your organisation, please contact one of our lawyers directly or call 0800 652 8025.