Following this year’s Queen’s Speech, the government has published the first draft of its much anticipated Procurement Bill. The Bill will replace existing procurement legislation and consolidate it into one Act.
Although the Bill is likely to be subject to some amendments as it makes its way through parliament, the Bill is notable for the scale of the changes that it proposes to the existing legislation. If passed, a number of the reforms will likely be welcomed by both contracting authorities and the private sector.
The Bill itself comes in at a fairly weighty 122 pages and so it is likely to take a while to unpick its full scope/impact. Some of the more interesting changes being proposed are set out below. Over the coming weeks we shall be posting articles and conducting webinars/podcasts looking at some of these points in more detail.
- Flexible procurement – the government considers existing procurement procedures to be “complex and inflexible”. The government proposes to streamline the procurement process by reducing the number of procedures and, most significantly, allowing authorities to select “such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the public contract” (NB this is not a complete carte blanche for the procuring authority!);
- Exclusion of bidders – the most interesting change proposed to the discretionary exclusion criteria is the right for authorities to exclude a bidder for past poor performance (there are also requirements for the authority to publish details of poor performance and certain breaches). This is likely to prove controversial;
- Transparency – the procurement objectives in s.11 of the Bill include the familiar principals of procurement (equal treatment and fairness) with one notable exception – the general obligation to act in a transparent and proportionate manner does not appear in this section instead the obligation will apply to specific sections of the Bill;
- Assessment summaries – tying in with the transparency another proposed change is to the standstill letter. Previously losing bidders had to be given details about the characteristics and relative advantages of the successful tenderer. The Bill provides that the contracting authority must now provide an “assessment summary” containing information about the contracting authority’s assessment of the tender and its assessment of the most advantageous tender. The level of detail required in the assessment summary is not clear from the current iteration of the Bill;
- Damages – some (but not others) will be relieved to note that the proposal that damages should be capped (set out in the government’s green paper) has not made it through to Bill following the response to the consultation exercise;
- Lots – authorities will have a duty to consider whether their contract can be divided into lots and, if so, will either have to separate the contract into lots or provide a reason for not doing so;
Conclusion on the Procurement bill:
Although the Bill is subject to amendments, the government’s intent to shake up the procurement regime is clear from the Bill. There will undoubtedly be further important points to consider over the coming weeks and as the Bill progresses through its readings.