Transforming Public Procurement Post Brexit

Dr Bob Couth (FCIWM) & Dr Cherie Whiteman (MCIWM)

The UK Government sees public procurement legislation as outdated, and has published a Green Paper to seek opinion on overhauling it, particularly to create opportunities for innovative companies. The Cabinet Office is seeking responses to 42 questions on public procurement by 10th March.

Since the end of the Brexit Transition Period on 1st January 2021 we have already seen the placement of the European Union Official Journal by the “Find a Tender” service for publishing contract notices. In addition, the Cabinet Office published a Procurement Policy Note (PPN) on Reserving Below Threshold Procurements in December 2020.

The UK’s exit from the EU means we can exercise additional freedoms in relation to contract spend on goods, services and works contracts with a value below the applicable thresholds. The thresholds are £122,976 for Services (e.g. waste collection) and Supplies (e.g. waste containers) contracts and £4,733,252 for Works (e.g. public convenience) contracts. The PPN sets out information and associated guidance on the options available to ‘In-Scope Organisations’ (government departments, executive agencies and non-departmental public bodies) to streamline and simplify procurement under these thresholds, and also tackle economic inequality, create new businesses, jobs and skills, as well as increasing supply chain resilience, encouraging entrepreneurship, and attracting new entrants to government markets. Other contracting authorities are encouraged to apply the principles in the PPN. The PPN states In-Scope Organisations should consider restricting contracts to local suppliers and Small and Medium sized Enterprises (SMEs) and Voluntary, Community and Social Enterprises (VCSEs). In awarding contracts, In-Scope Organisations should ensure Value for Money, identify and manage risks, use model contracts, develop KPIs and manage data, undertake supplier due diligence and be transparent in commercial activities.

The Government’s stated goal in the Green Paper is to speed up and simplify the procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery. The current regimes for awarding public contracts are too restrictive with excessive ‘red tape’ for buyers and suppliers alike. The Transforming Public Procurement Green Paper is seeking to ensure the essential principles of public procurement of transparency, ensuring value for money and fair treatment of suppliers are strengthened.

At present the UK’s public procurement legislation comprises: the Public Contracts Regulations 2015; the Utilities Contracts Regulations 2016; the Concession Contracts Regulations 2016, and; the Defence and Security Public Contracts Regulations 2011. The UK Government is proposing replacing these Regulations with single, uniform set of rules for all contract awards. It is proposing to overhaul the relatively complex and inflexible procurement procedures (e.g. Open, Restricted, Competitive Procedure with Negotiation, Competitive Dialogue) and replacing them with three simple, alternate procedures:

  1. a new flexible procedure that gives buyers freedom to negotiate and innovate to get the best from the private, charity and social enterprise sectors.
  2. an open procedure that buyers can use for simpler, ‘off the shelf’ competitions.
  3. a limited tendering procedure that buyers can use in certain circumstances, such as in crisis or extreme urgency.

There will be a single digital platform for supplier registration and a new Dynamic Purchasing System (DPS+). This will exploit digital technology intended to deliver better value and will legislate to introduce a common data model for all contracting authorities in line with the global Open Contracting Data Standard.

Regarding the award of public contracts, the Government:-

  1. intend to legislate to require contracting authorities to have regard to the Government’s strategic priorities for public procurement in a new National Procurement Policy Statement;
  2. propose 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’; and
  3. propose retaining the requirement for the evaluation of tenders to be made solely from the point of view of the contracting authority, but amending it so that a wider point of view can be taken exceptionally and only within a clear framework of rules.

Procurement legislation is not delegated to the four countries in the UK but the UK Government is engaging with the Welsh Government, Northern Ireland Executive and Scottish Government about the application of these proposed reforms.

FRM are working on a range of procurement projects at present including for collection services, cleansing, EfW and international projects. For technical advice and support on procurement call us on 01746 552423 or email sarah@frithrm.com

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