After more than 5 months, the Procurement Bill has seen a number of interesting amendments as it has progressed through the House of Lords.
One notable aspect is the role of Market Engagement in the procurement process.
The PCR2015 referenced the ability of contracting authorities to conduct Preliminary Market Engagement. However, the current draft of the Procurement Bill suggests a more targeted set of objectives.
The importance placed on the process is demonstrated through an amendment requiring contracting authorities to issue a Market Engagement notice prior to issuing a tender notice or explain the justification, in the tender notice, for not publishing a Market Engagement notice.
Clearly the intent is to encourage buyers to give consideration to early engagement with the market and involve suppliers earlier in the process when it is suitable to do so.
The Light Touch Regime has also seen proposed change in respect of Frameworks which will no longer be limited in length.
How this will work in practice obviously remains to be seen and exactly what services will fall within the definition of “light touch” will need to be clarified.
It will also be interesting to see how this may conflict with or complement the removal of clinical services from the procurement regime, under the Health and Care Act 2022.
Another possibly significant change is to a subject I’ve mentioned previously, the Debarment List.
An amendment to Section 27 of the Procurement Bill has proposed that contracting authorities will need to establish whether a bidder intends to sub-contract any part of the contract and, if so, to establish whether any intended sub-contractor is subject to the debarment list.
If this is the case, the contracting authority would be required to allow the bidder to replace the sub-contractor and, if they failed to do so, to exclude that bidder. In reality, the ability to do this has existed since the introduction of the standard Selection Questionnaire, but this now looks likely to be a requirement rather than just an option.
Suppliers will obviously need to ensure that any partners, sub-contractors or sub-suppliers are clearly compliant in the same manner as their own company.
One interesting outcome following the Committee Stage is the proposal to require a contracting authority to award a contract on the basis not only of which tender scored highest, but also which tender best meets the authority’s requirements.
Initially this might seem a logical step, but there is a major question that hasn’t been addressed in the proposal, which is what happens if the highest scored bid is not the one which best meets the authorities need.
More than ever, it will be essential for contracting authorities to clearly define their need in the tender documentation and ensure that the award criteria accurately reflect and support those requirements. It may, however, lead to challenge from suppliers who do not believe the process has been fair.
Contracting authorities are already required to ‘have regard’ to the National Procurement Policy Statement (NPPS). Previously it appeared that failing to do so could result in a possible claim under the Procurement Bill. However, a new clause appears to clarify that the requirement to ‘have regard’ will not enforceable under the Procurement Bill, although it may still be actionable via judicial review.
Finally, the issue of Change or Modification to contracts has seen a number of proposed amendments at the Committee stage.
One amendment has sought to clarify what is meant by a material modification changing the scope of a contract. The intent to make this issue clearer is welcome, but it will be essential that the guidance does not cause even greater confusion or this could lead to challenges in the future.
No doubt there will be many more significant changes as the Procurement Bill goes forward and proceeds through the House of Commons.
Find further procurement reform comment and insight at www.procurementreform.co.uk.
If you would like advice on this or any other aspect of public procurement, please complete our enquiry form or call us on 0141 270 7666.
While all information provided is given in good faith, the contents of these articles are not to be construed as legal advice or a substitute for such advice, which you should obtain from your legal advisors if required. We are not and shall not be held responsible for anything done or not done by you as a result of the information provided.
