Procurement
New procurement era takes shape While some confusion remains over exemptions as the Procurement Bill makes its way through committee stage, further details on transparency and a single digital platform should help level the playing field for SMEs looking to engage with the public sector Details of the Government’s far-reaching changes to procurement legislation are finally beginning to emerge as the foggy Green Paper of December 2020 gets shaped into law. With changes expected to come into force as early as August 2023, its main aims (according to the way it’s being sold by the Cabinet Office) are to capitalise on opportunities to simplify procurement post Brexit. This in turn will make it easier for SMEs to win contracts. It also strengthens exclusion grounds, making it easier and less litigious for public sector bodies to disqualify poor performing suppliers. Exemptions As the Procurement Bill makes its way through the Lords (currently at committee stage) some organisations have voiced concerns over technical changes to exemptions. Under current procurement legislation (PRC2015) there are broadly two - the first is when a public body makes ‘in-house’ awards (The Teckal exemption). The second is when a public body enters into a public-public co-operation arrangement, for example where local authorities co-operate to deliver waste services jointly (referred to as the Hamburg exemption). Teckal and Hamburg are now referred to respectively as vertical and horizontal exemptions, but according to the current wording of the bill, deals will no longer be exempt if “the goods, services or works representing the main purpose of the contract could be supplied under a separate contract.” Potentially, this means that if a private provider could reasonably provide the services or goods
in question, the public sector will no longer be able to make use of the exemptions. Peter Collins of Sharpe Pritchard LLP, notes: “Within the Bill, local authorities which set up ‘single’ entities on their own will continue to benefit from the vertical exemption, meaning they can award contracts to an entity without going through a full procurement process. However, contracts that councils award to joint entities, controlled by multiple local authorities, appear no longer to be exempt and will potentially be subject to a full procurement process. This would undermine the purpose and benefits of councils operating joint entities. “This is a surprising omission from the Bill and one without any real logic. Given the hundreds of shared-services vehicles throughout local government, the need to ensure that these arrangements are not prohibited will potentially require some amendment to the Bill. Given the speed at which those drafting the Bill were required to operate, it is entirely possible that these provisions simply got left out in error.” The Local Government Association (LGA) is seeking clarification that both vertical and horizontal collaboration arrangements within the public sector will continue to be exempt and that the model of service delivery remains the choice of the contracting authority. A proposed rewording has been put forward by Lord True (reportedly, John Major’s favourite speechwriter) as the bill goes through Committee stages, with further amendments discussed on 18th July (available to view here). Broadly, the LGA welcomes the bill. It has noted that many of its concerns arising from
the Green Paper had been resolved in the legislation as it passes through the Lords. However, a number of grey areas remain in the bill, which the LGA believes may have unintended consequences for local government and could potentially create new difficulties in meeting the procurement objectives whilst delivering high-quality public services. Single Digital Platform The Bill aims to streamline the various requirements for publishing different types of procurement information in different ways and in different places. For those wishing to supply, there can literally be hundreds of places to check notices and post details. The Single Digital Platform will be created for suppliers to register their details that can be used for all bids, and a single central ‘transparency platform’ will allow any interested party to see how contracts are performing, how much has been spent through them and how long they have left to run. A register of commercial tools will allow contracting authorities to see which frameworks and dynamic markets they can use, a performance register will show how suppliers perform through various contracts, a self-explanatory prompt payment register and a debarment list will be available to view suppliers which may be excluded from procurements. API access to data is published to the Open Contracting Data Standard (OCDS) and over time the plan is to explore integrating commercial data analysis tools. The principles of this can be found in the recently published Transparency Ambition policy paper, released
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