In our last blog we promised to summarise the proposals within the green paper “Transforming Public Procurement’ published by the Cabinet Office on 15th December about the future of public procurement in the UK.

The Government’s goal is to speed up and simplify our procurement processes, place economic, social, ethical and environmental value at their heart, creating better opportunities for small businesses, charities and social enterprises to innovate in public service delivery. 

The green paper sets out the Government’s proposals to:

• Remove over 350 regulations and clarify parallel rules within the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016 and the Defence and Security Public Contracts Regulations 2011. Replacing them all with a single, new regulatory framework that simplifies processes and provides freedom in decision making to drive a culture of value, transparency and continuous improvement, supporting more resilient, diverse and innovative supply chains. 
• Separately set out plans to require contracting authorities to consider national priorities detailed in a National Procurement Policy Statement
• Legislate that the core principles of public procurement should be to:
• support the delivery of national priorities for public good, including economic, social, ethical, environmental and public safety
• provide value for money – achieving outcomes economically, efficiently and effectively 
• provide transparency with clear accountability for public money, anticorruption and effectiveness of procurements
• be managed well, preventing misconduct, fraud and/or corruption
• treat suppliers fairly, with contracts being awarded impartially, with no conflicts of interest or discrimination.
• Set up a new Cabinet Office investigatory unit with powers to monitor and review the commercial capability of contracting authorities, and intervene, where necessary, with targeted interventions to improve policy, capability, behaviour, practice and spending controls.

The Government wants to know whether or not we agree with these proposals, and, if they do set up an investigatory unit, where should the panel be sourced, and what sanctions/interventions would be effective?

The Government also propose to change procurement procedures to allow for more negotiation and greater engagement with potential suppliers to deliver innovative solutions in partnership with the public sector by:

• Replacing the seven current procurement procedures with three:
• a new flexible procedure that gives buyers freedom to negotiate and innovate to get the best from the private, charity and social enterprise sectors
• use the current open procedure that buyers can use for simpler, ‘off the shelf’ competitions
• renaming the ‘negotiated procedure without prior publication’ as the ‘limited tendering procedure’ that buyers can use in certain circumstances, such as in crisis or extreme urgency.
• Making ‘crisis’ a new ground for undertaking limited tendering, such need has arisen from the COVID-19 pandemic.
• Making it mandatory to publish a notice when a decision is made to use limited tendering procedures.
• Removing the Light Touch Regime currently used in the procurement of social, health, education etc as a distinct method of awarding contracts.

Should we agree with these changes? Could the proposals go further to foster more effective innovation in procurement? Are there specific issues you have faced when interacting with contracting authorities that have not been raised here and which inhibit the potential for innovative solutions or ideas? 

In order to make it easier for new entrants to compete and win public contracts, it is important to make information on contracts more accessible, bidding processes simpler, quicker and cheaper to participate in. To do this, they are proposing to create a new Dynamic Purchasing System (DPS+) that may be used for all types of procurement (not just commonly used goods and services).

Other key proposals include:

• Requiring all contracting authorities to implement the Open Contracting Data Standard  https://www.open-contracting.org/data-standard/  
• Allowing buyers to include criteria that go beyond the subject matter of the contract and encourage suppliers to operate in a way that contributes to economic, social and environmental outcomes on the basis of the ‘most advantageous tender’.
• A new framework tool for contracting authorities for closed or open framework agreements. Closed framework agreements would be up to four years, and open would be up to eight years, with up to three years post-award that are closed.
• Using the exclusion rules to tackle unacceptable behaviour in public procurement such as fraud and exploring the introduction of a centrally managed debarment list.
• Giving buyers the tools to properly take account of a bidder’s past performance and exclude them if they clearly do not have the capability to deliver.
• Reforming the process for challenging procurement decisions to speed up the review system and make it more accessible. 
• Legislating to further tackle payment delays in public sector supply chains and give small businesses, charities and social enterprises deep in the supply chain better access to contracting authorities to expose payment delays. Where undisputed invoices are not paid within 30 days, interest would become payable.

The Government is looking specifically for feedback on the training, guidance and case studies that may be useful to support overcoming procedural, cultural and data challenges faced within procurement.

Initial stakeholder feedback has suggested options that the Government could consider, such as the use of ‘innovation labs’, to bring innovative suppliers and relevant bodies together to develop ideas, including through ‘multiple supplier collaborative solutions’, and powers that enable review and post-contract amendments to contracts when considering variations due to innovation. 

What do you think about these proposals?

A consultation is currently open, running until 11.45pm on 10th March 2021. 

Have your say. Please contact us with any questions or comments you have about the proposals at help@tenderhelp.co.uk We will include them in our response to the consultation, or you can answer the consultation questions directly at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/944252/Consultation_Questions.pdf and send them directly to procurement.reform@cabinetoffice.gov.uk by 10th March 2021.

We’ll share our thoughts and responses to some of the questions next month.

Written by Helen Holland.

Reference: Cabinet Office, (2020), Transforming public procurement, [Online], Available at  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/943946/Transforming_public_procurement.pdf OCL, UK. (Accessed 26th January 2021)

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