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Green Paper - Transforming Procurement

Procurement proposals post-Brexit

In December 2020, the government’s ‘Transforming Public Procurement’ Green Paper announced the key proposals for transforming public procurement post-Brexit.

What would change:

A new “unit” with the power to intervene and drive-up standards in individual contracting authorities.

Relevance – those who regularly fail to meet procurement rules could face an ‘intervention’, making the need for compliance and advice where necessary more important.

A single regulatory framework to replace current multiple regulations

Relevance – All procurement laws in one place, regardless of sector. It is advisable to seek advice on which ancillary laws remain unchanged.

Merging the existing seven procurement procedures into three new procedures:

  1. A new competitive flexible procedure for negotiations;
  2. Retaining the ‘open procedure’;
  3. Retaining the ‘negotiated procedure without prior publication’ but renaming it as the limited tendering procedure

Relevance – Potentially greater flexibility (and ability to negotiate) in more complex tenders, whilst maintaining the most common tender type (the open procedure). Advice should be sought on the new procedures once the new laws are drafted and enacted.

More flexible rules in evaluating tenders

Relevance – allows evaluations to consider wider viewpoint (e.g effect on community) and less restrictions on taking past performance into account. There is expected to still be some limitations in this area so care will be needed.

A new Dynamic Purchasing System (DPS+), going beyond ‘common goods and services’

Relevance – A DPS (a pre-established agreement) is advantageous as it lets new suppliers join at any time, and would allow for this process to be used in even more service areas.

Greater flexibility in agreements – allows new suppliers/innovation, and the maximum term changed from 4 years to 8 years

Relevance – pre-established agreements make subsequent tenders simpler and shorter. The current set-back is that no new suppliers can join once an agreement has been established, potentially ‘shutting out’ innovation, and small or new companies. The new proposal addresses this set back which benefits quick moving/developing markets (e.g. IT).

Increased transparency of contracting data, using electronic reporting – including evaluation records

Relevance – Evaluation records such as scores and comments will become more important as these may now have to be disclosed by default. Implementing good practice/evaluation templates will help to ensure that this is met.

Court reform and faster and easier remedies available to suppliers

Relevance – The process for challenging a procurement could potentially be made ‘easier’ for a supplier, resulting in a greater threat to any buyer who breaches procurement rules – whether inadvertently or not.

Added flexibility for “times of crisis”

Relevance – ‘The COVID regulation’ – following the lessons learnt from the pandemic (both good and bad), it would regulate new tenders and amendments to current contracts under times of crisis. Some provisions will relate to tenders during the time of crisis (e.g. you may be allowed shorter timescales, or to avoid procurement all together). Other parts of the proposed provisions would set out the rules on how you could modify an existing contract due to the crisis (e.g. changes in timescales, increase in cost, extended term), without breaching the procurement rules on contract modifications.

Key dates: