One of the key messages around UK public procurement reform has been the promotion of a ‘Simpler Regulatory Framework’ with the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concessions Contracts Regulations 2016 and the Defence and Security Public Contracts Regulations 2011 all being rolled up into a single Procurement Bill that should become a Procurement Act in late spring 2023.
I thought this one stop shop approach would help procurers more easily determine which part of the legislation to apply to deliver compliant and effective procurement outcomes, in part by reducing the grey and lesser known elements of the legislation.
However with the current procurement reforms, there’s greater discretion to create legislation that better fits the UK public, utility and defence sectors as opposed to the legislative updates in 2004 and 2014. In those two cases the procurement directives were largely a fait accompli, with little legislative wriggle room for EU Member states to make changes to them.
But even in the absence of prescriptive EU Directives it’s not been a legislative free for all this time either, as we must still work within the parameters of the WTO’s Government Procurement Agreement (GPA). The GPA protects the rights of companies in all countries who are signatories to the GPA, e.g. a company in Country A must be allowed to bid for public sector business in Country B, and vice versa thereby supporting trade agreements.
So despite the aim to aggregate and simplify the main sets of legislation, the increased interest and discretion seems to be spawning an increasingly varied set of, hopefully complementary, legislation that will interact with the core Procurement Bill. This parallel legislation includes:
Health and Care Act 2022: provider selection and patient choice
– https://www.gov.uk/government/publications/health-and-care-bill-factsheets/health-and-care-bill-provider-selection-and-patient-choice
Social Partnership and Public Procurement (Wales) Bill
– https://senedd.wales/media/2y3fghox/pri-ld15134-e.pdf
Health Service Procurement (Wales) Bill
– https://www.gov.wales/written-statement-health-service-procurement-wales-bill
MOD Single Source Legislation Reform
– https://www.gov.uk/government/publications/defence-and-security-industrial-strategy-reform-of-the-single-source-contract-regulations
In addition to these, we will also see the introduction of statutory instrument/s (also known as secondary legislation) that are the legislative mechanism used to add more detailed guidance to that established in the Procurement Bill/Act.
And we’ll also have procurement policy notes which will augment, explain and support the application of the legislation and procurement best practice in general.
So while I welcome anything that removes unnecessary duplication from the current raft of procurement legislation, I think that we will need to keep a very close eye on the progress of the core legislation (and its friends) as they enter into force; and importantly what secondary legislation, policy, training and templates are provided to support successful procurement reform.
So while the Procurement Bill may indeed simplify the regulations it’s set to replace, I think that the addition of further legislation and policy will keep procurers, and those who deliver procurement training, on their toes for some time to come, especially where there are decisions to be made around which set of legislation to apply.
