Legal & Business

CHANGES IN PROCUREMENT LEGISLATION: AN OPPORTUNITY TO ‘BUILD BACK BETTER’

George Barnes, Partner at Carter Jonas (London), discusses how the imminent Procurement Bill presents an opportunity, post-Brexit, to simplify local authorities’ procurement practices when selecting development partners, and in doing so, the potential to deliver the Government’s agenda.

Within the last year, the Government published and consulted upon a Green Paper Transforming Public Procurement, announced the imminent Procurement Bill and published the first National Procurement Policy Statement.

With the revised legislation, the 350 procurement regulations currently in place are set to be removed, and developers looking to work with the public sector will watch with great interest.

Currently, procurement suffers from the problem of a single set of regulations applying to disparate requirements: an authority looking to select a development partner is effectively working from the same playbook as one looking to buy widgets or parking meters.

Public procurement is also seen as lengthy, inflexible and expensive.

The proposals for a new ‘competitive flexible procedure’ are to be welcomed. However, this is no universal panacea – many of the problems with procurement arise not from the regulations themselves but the way in which they are used.

Authorities must acknowledge the time and cost involved in tenders relating to, for example, the selection of a development partner. It is incumbent on them to ensure that processes are proportionate to the contract being awarded. However, bidders also need to acknowledge that there are aspects of a selection process which are genuinely required for a judgement to be made by the authority.

Several issues should be directly addressed. One is the prohibition of material changes to a bid post-selection. With a development proposal, this is not practical – once pre-application discussions with the planning authority begin, there will inevitably be changes required to secure a consent. But, clearly, it is not practical to cancel the whole process because the planners require changes.

Furthermore, procurement cannot be looked at in a vacuum. It has been customary for selection to be based on a weighted basket of considerations, both financial and qualitative. In an effort to encourage buyers to give more consideration to social value, evaluation are to change from Most Economically Advantageous Tender (MEAT) to Most Advantageous Tender (MAT). In development, we welcome this approach. However, it directly cuts across other legislation, significantly the obligation to secure Best Consideration for the disposal of land under Section 123 of the Local Government Act 1972. The change from MEAT to MAT must be backed up by changes to best consideration to avoid direct contradiction of S123.

Public/private partnerships are clearly encouraged, but must deliver ‘value’, along with transparency. The ‘one-sizefits-all’ approach should be avoided at all costs.

Procurement is vital in delivering the Government’s aspirations of levelling up, net zero and ‘building back better’. Transforming the delivery of major programmes across the country requires a bold approach. But procurement is a notoriously complex area and meticulously-detailed consideration is a top priority. 

George Barnes

is a Partner in Carter Jonas’ London Development team. He advises public sector clients on land and development – from initial feasibility studies through to delivery strategies, marketing and procurement and the negotiation of development agreements and joint ventures.