Following my initial review of the proposed change from ‘procurement principles’ to ‘procurement objectives’ in the Procurement Bill, I was bemoaning the loss of the general principle of proportionality when the new Procurement Act takes over from the current Public Contracts Regulations 2015.
While we don’t (at time of writing) have this as a general principle/objective, I thought it was only right to update my earlier comments to say that the most recent draft of the Procurement Bill contains 18 uses of the word proportionate.
While I would prefer to have retained the blanket coverage that exists at present, it is very useful to have these requirements set into the context of the sections that they apply to. This should – I hope – improve the understanding of those new to procurement and ensure more proportionate procurements for all…especially SMEs where barriers to competition are a frequent frustration.
These sections include the following:
19 Competitive Tendering Procedures
“A contracting authority must ensure that the procedure is a proportionate means of awarding the public contract, having regard to the nature, complexity and cost of the contract.”
21 Conditions of Participation
“(1) A contracting authority may set conditions of participation in relation to the award of a public contract under section 18 only if it is satisfied that the conditions are a proportionate means of ensuring that suppliers have —
(a) the legal and financial capacity to perform the contract, or
(b) the technical ability to perform the contract.
…
(4) When considering whether a condition is proportionate for the purposes of subsection (21)(1) a contracting authority must have regard to the nature, complexity and cost of the public contract.”
22 Award Criteria
“(2) In setting award criteria, a contracting authority must be satisfied that they—
(a) relate to the subject-matter of the contract,
(b) are sufficiently clear, measurable and specific,
(c) do not break the rules on technical specifications in section 53, and
(d) are a proportionate means of assessing tenders, having regard to the nature, complexity and cost of the contract.”
35 Dynamic Markets: Membership
“(1) A contracting authority may set conditions for membership of a dynamic market or part of a dynamic market only if it is satisfied that the conditions are a proportionate means of ensuring that members—
(a) have the legal and financial capacity to perform contracts awarded by reference to membership of the market or the part of the market;
(b) the technical ability to perform such contracts.”
So while I like, and support, the approach to add these proportionate requirements into relevant sections of the proposed legislation, I still think that an overarching proportionality principle would be a valuable addition to the proposed procurement legislation.
My core reason for saying this is that no matter how well-meaning the drafting of the new legislation is, it’s impossible to cover all situations where an overarching principle of proportionality would be beneficial.
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