UK Government’s Green Paper: Transforming Public Procurement
On 15 December 2020 the UK Government published its long-awaited “Green Paper: Transforming Public Procurement” (the “Green Paper”) setting out its proposed changes to the public procurement regime in England, Wales, Scotland, and Northern Ireland.
The eighty-two-page Green Paper proposes to repeal the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016 and the Defence and Security Public Contracts Regulations 2011 and produce a single set of regulations covering all public contracts.
No changes are currently proposed to the definitions of public contracts. There are no changes to the current financial thresholds which remains in place until 31 December 2021. There are also no proposed changes to the definition of contracting authorities. These will continue to include registered providers as well as central government and local government bodies.
The new legislation proposed by the Green Paper will be underpinned by six core principles: public good, value for money, transparency, integrity, fair treatment of suppliers and non-discrimination.
The Green Paper proposes a complete overhaul of the existing procedures for awarding public contracts. It is radical in its aims and intentions. The current open procedure will be retained for simple, off the shelf procurements. The negotiated procedure which is used without prior publication of a contract notice will be renamed the “limited tendering procedure”. It will be available for use in cases of crisis and genuine emergency. All other procurement procedures will be abolished and replaced by a new, competitive flexible procedure. This new, competitive flexible procedure will give contracting authorities more autonomy to produce their own tender processes and also to negotiate with bidders. The Green Paper proposes that new procurements will be advertised in the Government’s “Find a Tenderer Service” portal.
The Green Paper proposes that a new central platform should be established to allow bidders to submit pre-qualification information. Contracting authorities will also be able to use a wider range of information to carry out selection criteria verification. They can also reject bidders for significant poor performance on previous public contracts. The Green Paper has also raised the possibility of establishing a central list of banned suppliers for public contracts. If properly managed and maintained, this will be a welcomed development.
In order to widen a contracting authority’s scope in evaluating tenders, the Green Paper proposes to change the overall basis of tender evaluation from seeking to achieve the “most economically advantageous tender” (“MEAT”) to a much broader criteria of “most advantageous tender” (“MAT”). This complies with the requirements of the World Trade Organisation’s Agreement on Government Procurement. The clear intention is that this will encourage contracting authorities to place further weight on factors such as social value and environmental impact as part of their tender assessment as well as pricing.
Framework Agreements will be retained and extendable for up to eight years. They will also be made open to new suppliers. Dynamic Purchasing Systems will be replaced by a new commercial tool called DPS+ with no maximum duration. DPS+ will be available for contracting authorities to use for all types of procurements.
In a major change to current procurement practice under the Public Contracts Regulations 2015, contracting authorities will no longer have to provide individual feedback to bidders about award decisions. They will only be required to publish basic disclosure information about the procurement which will be publicly available. Contracting authorities will also be required to publish procurement and contracting data via the Open Contracting Data Standard, including information about future opportunities and the amendment of existing contracts.
The Green Paper also proposes a complete overhaul of the current process for challenging procurement contract awards. The suggested changes include an expedited trial process and a tribunal system to allow challenges to be heard in a faster and cheaper manner. The Green Paper also proposes to place a cap on the award of damages even if a contract award is successfully challenged by an aggrieved bidder.
The consultation period for the Green Paper closed on 10 March 2021. The Green Paper has understandably been the subject of widespread comment. The Cabinet Office is currently considering all of the responses which it has received following the closure of the consultation period. A bill will then be placed before Parliament later this year and is expected to become law either in late 2021 or in early 2022.
For more information please contact Richard Moore.