As mentioned in our earlier note on the new Procurement Bill, which was published on 12th May 2022, the Bill proposes some significant changes to current procurement legislation. Again, the Bill is likely to be altered as it goes through parliament. This note looks at two areas in particular: changes to the procurement procedures and an increased focus on transparency.
Currently there are a number of different procurement procedures – open, restricted, competitive with negotiation, competitive dialogue, design contests and the innovation partnerships procedure. The government has stated that it views these procedures (or most of them at least) as being “complex and inflexible”.
The government has reduced the number of procedures in the Bill, retaining the existing open procedure and included a new flexible procedure. S.19(2)(b) of the Bill allows for authorities to use “such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the contract”. This is somewhat akin to the existing “Light Touch Regime”, in the freedom that it grants contracting authorities to largely determine their own procedures.
Whilst the new procedure appears to offer a great deal of flexibility, contracting authorities will not be totally unconstrained – among a number of other things, contracting authorities will still need to adhere to:
- The procurement objectives;
- The transparency requirements;
- The correct application of evaluation criteria
The competitive flexible procedure will allow for negotiations with bidders and will replace the competitive dialogue and competitive with negotiation procedures, both of which have often been criticised for being expensive and resource intensive for both bidders and the procuring authorities.
Whilst the general obligation of transparency is to be removed from the principles of procurement (the “procurement objectives” in the Bill), transparency is embedded throughout the Bill and contracting authorities will be subjected to enhanced transparency requirements.
The most obvious way that transparency has increased is in the notice provisions. Some of the notice requirements will be familiar to contracting authorities, but others are new:
- Notice of Planned Procurement (voluntary and similar to a prior information notice);
- Preliminary Market Engagement Notice (voluntary to alert the market of the authority’s intention to consult);
- Planning and Pipeline Notice (authorities will be required to publish when they consider that in the coming financial year they will pay more than £100 million under relevant contracts);
- Tender Notice;
- Contract Award Notice (a notice of the authority’s intention to award);
- Contract Detail Notice;
- Contract Change Notice (notification of the intention to modify a contract unless the exemptions in s.70(2) apply);
- Contract Termination Notice (to be published when a contract is termination, expires, is rescinded or is set aside by court order)
- Dynamic Market Notice (notifying of the intention to establish a dynamic market and then notifying on its establishment);
- Transparency Notice (for direct awards);
- Payment Compliance Notice;
- Below Threshold Tender Notice (applicable to certain below threshold procurements).
With certain exceptions, contracting authorities will have to set and publish at least three KPIs for contracts with a value in excess of £2 million.
Contracting authorities will also be required to publish any contracts which have a value of £2 million or more. The contract must be published within 90 days of the date that the contract was entered into.