Public Procurement: What’s Changing?

The Cabinet Office’s Green Paper: Transforming Public Procurement (the “Green Paper”) was published in December 2020 prior to the end of the transition period. Under the Green Paper, the Government proposed some major changes to the current procurement regime with the aim being to speed up and simplify the public procurement process, whilst ensuring that value for money and opportunities for small businesses remained key considerations.

The consultation ran from December 2020 to March 2021, and following the Government’s review of the responses to the consultation, it has now published the Government Response to Consultation (the “Government’s Response”), setting out the next steps in public procurement reform.

We have highlighted some of the key changes proposed under the Government’s Response below:

Proposed Changes: Procurement Regime and Procedures

• Enshrining the principles of transparency, fair treatment of suppliers and non discrimination into legislation, and creating statutory objectives which influence decision making in the procurement process and which apply for the life cycle of the procurement. These include promoting the importance of open and fair competition, public good, value for money and integrity
• The creation of a single regulatory framework for all public procurement regulations, although there will be some exceptions to ensure that the required levels of flexibility are maintained for utilities and defence and security contracts
• Reducing the existing seven procurement procedures to just three:

1. Competitive Flexible Procedure - a new procedure similar to the Light Touch Regime
2. Open Procurement Procedure - retained from the existing regime with some amendments
3. Limited Tendering Procedure - the same as negotiated procedure without prior publication

• Retaining the LTR but considering its scope and whether some services can be removed from the LTR regime

Proposed Changes: Frameworks

• The creation of an ‘Open Framework’ which would allow suppliers to submit bids to join the framework at predetermined points, with a maximum term of eight years
• A ‘Closed Framework’ would also exist, and suppliers would not be able to join the framework unless they were appointed at the start of the framework. The maximum duration is four years
• The introduction of the Dynamic Market which is similar to a DPS but can be used for all types of procurements not just goods and services

Proposed Changes: Procurement Evaluation

• Replacing Most Economically Advantageous Tender (“MEAT”) with Most Advantageous Tender (“MAT”) will to allow Contracting Authorities to take a broarder view of what can be included when determining evaluation criteria, and to support Levelling Up and give more consideration to social value
• Retaining the requirement that award criteria must be linked to the subject matter of the contract but including specific exceptions set by the Government
• Removing the requirement for the evaluation of tenders to be solely from the point of view of the Contracting Authority to allow Contracting Authorities to decide whether they should take a broarder perspective on this point
• Introducing a new supplier exclusions framework that clearly sets out mandatory and discretionary exclusions and how these should be applied

Proposed Changes: Transparency

• Introducing proportionate transparency requirements
• Requiring all Contracting Authorities to implement the Open Contracting Data Standard (“OCDS”) to facilitate the sharing and analysing of data at category and contract level, and increase transparency and help counter fraud and corruption in public procurement
• Creating a supplier registrations system will which will be centrally funded and free for all users - suppliers will only need to input data once to qualify for any public sector procurement

Next Steps for Contracting Authorities

At present, the proposals have not been set out in legislation, however Contracting Authorities should familiarise themselves with the proposals/responses under the Green Paper and Government Response, and undertake further training where available to ensure they are prepared for any upcoming changes.

Once legislation and further guidance is available, we suggest that Contracting Authorities thoroughly review this to ensure that they clearly understand the requirements of the new regime, and review their portfolios of upcoming procurements and consider the impact of any changes.

Ashfords’ Public Sector Team regularly advise on public procurement processes and compliance with public procurement regulations. For further details on the UK’s procurement regulations, proposed changes, or any assistance with public procurements, or any other public sector queries, please contact our Public Sector Team who will be more than happy to assist you.