The UK Government’s Green Paper, NPPS and Procurement Bill set out major legislative reforms to UK public procurement. While the proposed changes are clearly set out in a draft Bill, this is not yet fixed in law as the Parliamentary process may still significantly alter the final version of the legislation.
One thing that is certain about the new legislation is that it’s going to be simpler; both through the combination of many sets of regulations into one and through the reduction of available procurement procedures. This reduction of procedural conformity means that we’ll have to rely more than ever on the principles of procurement, or as they’re reinvented in the Procurement Bill, the ‘procurement objectives’.
The guiding principles within the current regulations require contracting authorities to treat suppliers equally and without discrimination and to act in a transparent and proportionate manner. These principles along with the principle of mutual recognition have been at the heart of public procurement in the UK for decades and are a helpful guide especially where the regulations are unclear or silent.
That makes the removal of some principles and addition of new objectives a big deal!
The proposed procurement objectives, as set out in Section 11 of the Procurement Bill, are as follows:
(1) In carrying out a procurement, a contracting authority must have regard to the importance of—
(a) delivering value for money;
(b) maximising public benefit;
(c) sharing information to allow suppliers and others to understand the authority’s procurement policies and decisions;
(d) acting, and being seen to act, with integrity.
(2) In carrying out a procurement, a contracting authority must treat suppliers the same unless a difference between the suppliers justifies different treatment.
(3) If a contracting authority considers that different treatment is justified in a particular case, the authority must take all reasonable steps to ensure it does not put a supplier at an unfair advantage or disadvantage.
Section (1) requires contracting authorities to have regard to the objectives listed when carrying out a procurement. In practice this is likely to mean that contracting authorities should take account of this guidance and carefully consider it. Having done so, there would need to be a good reason to justify non-compliance with any of the objectives.
The addition of ‘value for money’ and ‘maximising public benefit’ seems sensible, but these are what public procurers have been doing for many years anyway, so for me this is more of a reinforcement of the fundamentals of public procurement and a steer for those new to it. However, if their addition encourages greater efficiency and effectiveness in procurement exercises then I’ll happily extoll their virtues.
Sharing information seems broadly to be a continuation of the principle of transparency and is likely to make the cut as it spans many more areas of government than procurement.
Acting with integrity is a laudable aim, and one which may have been borrowed from the UK Government’s Seven Principles of Public Life, which states:
“Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.”
A core aim of the current principles is to open up markets and ensure there are no barriers to free trade, and Sections (2) and (3) should go a long way to continuing this approach of open, free and fair competition, as they seem to be a continuation of equal treatment and non-discrimination.
For me, the glaring omission is that of proportionality…while originally an EU principle (along with mutual recognition) it may usefully be applied to many aspects of public procurement. For example, practitioners should be proportionate with their requirements, their procurement processes, the questions they ask bidders and much else besides. Even if it’s not included in the legislation, it’s likely that proportionality will be written into the accompanying policy and guidance.
The objectives have been a hot topic of debate within the parliamentary process with a number of amendments being proposed during the readings in the House of Lords, including:
- “acting to improve economic, social, environmental and cultural well-being by carrying out public procurement in a socially responsible way”
- “the protection of the environment”
- “In carrying out a procurement, a contracting authority must ensure the safe, sustainable and ethical use of automated or algorithmic decision-making systems and the responsible and ethical use of data.”
Whatever the final position is, once it’s journey through both Houses of Parliament is complete, the new objectives will play a large part in public procurement exercises, and where they are not upheld could form the basis for legal challenges.
Find further procurement reform comment and insight at www.procurementreform.co.uk.
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