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HCR Law Events

21 December 2020

The way ahead for public procurement

The public procurement regime plays a vital role in our economy but has frequently come in for criticism. Regarded by contracting authorities and bidders alike as being complex, unwieldly, slow and costly, the prospect of change to the rules and processes is an enticing one. That change is one small step closer with the Cabinet Office publishing its discussion paper “Transforming public procurement”.

So, what is set to change? The key principles (value for money, fairness, impartiality, transparency and non-discrimination) will remain but are likely to be more clearly defined. Beyond this, however, the aim seems to be no less than the creation of a new regime which is more cohesive and streamlined and which is better able to cater for increasingly sophisticated contractual needs and ever more diverse and innovative products and suppliers.

The proposals set out in the Green Paper are wide-ranging and envisage change to every aspect of the process, from the presentation of bid criteria to the legal challenge of contract awards made. Key elements of the proposals include:

  • Replacing the various procurement rules with a single, uniform framework, but with sections which can cater to those areas of the market with specific requirements (such as utilities and defence) to ensure the rules remain fit for purpose
  • Building in additional flexibility to negotiate terms and enabling contracting authorities to run more steam-lined competitions for simpler contracts
  • Permitting a more limited procedure to be adopted in cases of extreme urgency or crisis (no doubt incorporating lessons learned from Covid-19)
  • The adoption of simpler bidding processes (including supplier registration and a new Dynamic Purchasing System) which will make it quicker and cheaper for suppliers to find and bid for opportunities
  • Standardising processes and improving transparency by using a common data model to ensure that the application process is simplified, and that data and documents provided are consistent and widely available at all stages of the procurement process (albeit with regard for data protection principles)
  • Extending the ability for contracting authorities to exclude bidders who have adopted poor practices in previous procurement exercises or who clearly don’t have the capability to deliver
  • Enabling contracting authorities to build an increased emphasis on ‘non-economic’ factors (such as social or environmental values) into the bidding process
  • An overhaul of the legal processes governing the award of contracts and challenges to decisions, in order to speed up and open up the system whilst discouraging speculative challenges.

Of course, change is still some way off (the public consultation doesn’t end until 10 March 2021). Nonetheless, for those who have reservations about the current regulations and processes, this will be a positive step indeed.

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About the Author
Clare Murphy, Partner

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