Government Green Paper response on Public Procurement: Specific Procedures

Following the publication of the Green Paper on Transforming Public Procurement in December 2020 (Green Paper), the Cabinet Office released the Government's response to its consultation with stakeholders (Government Response). The Government Response outlines various amendments to the initial proposals for new legislation as well as further detail on what we can expect to be included within the new regime.

Importantly, the Government Response sets out that the Cabinet Office intends to give six months' notice before any new procurement regime goes "live" and that the new regime is unlikely to come into force until 2023 at the earliest.

In this second instalment of our series, we will outline anticipated changes to procurement procedures and the light touch regime, in addition to commercial purchasing tools.

This article is part of a series of four articles breaking down the anticipated changes set out in the Government Response, as follows:

Using the right procurement procedures (Chapter 3)

Procurement procedures

The Green Paper proposed reducing the number of available procurement procedures from five to three. The three proposed procedures are as follows:

• A 'flexible competitive procedure' which will allow buyers freedom to negotiate in order to get the best from their procurement
• An 'open procedure' for simple 'off the shelf' competitions
• A 'limited tendering procedure' to be used in certain circumstances, such as extreme urgency.

Generally, the above was well received however, concerns were raised by respondents that the flexible competitive procedure in particular could become more onerous for contracting authorities, and more uncertain for suppliers, as a result of the need to tailor the process for each procurement. The Government has acknowledged this in its response but has confirmed that it intends to proceed with this proposal as, in the Government's view, this will result in better run procurement processes. In order to alleviate some of the uncertainty for suppliers, contracting authorities will be required to set out the manner in which the competition will be run in a tender notice, including any conditions, time limits, evaluation criteria and the phases for any multi-stage procedures. The Government also plans to support consistency and compliance with legal obligations by issuing supporting guidance, template design options and case studies. In our view, the issuing of guidance will be key to assist purchasers.

Light Touch Regime

The Government originally proposed that the Light Touch Regime was unnecessary given the new competitive flexible procure, as it believed this would cater for the majority of contracts awarded under the existing regime. Concerns were raised during consultation in respect of procurements involving 'service user choice'. As a result, the Government now plans to retain the flexibility offered by the current regime, but with some amendments to reflect the broader changes such as notice and transparency requirements. This is likely to be a welcome change to those involved in certain sectors such as health and social care

'Crisis'

The Government's original proposal was to include 'crisis' as a new ground for which limited tendering can be used in order to provide greater certainty for contracting authorities should there be a local or national emergency. Consultation revealed that there were significant concerns regarding what would constitute a 'crisis' and whether this would apply at a local as well as national level. After consideration the Government is planning to move away from the term 'crisis' and instead include a limited tendering ground, in the form of a new power for a Minister of the Crown to "declare when action is necessary to protect life". This new ground is intended to allow contracting authorities to procure within specific parameters without having to meet all requirements of the current extreme urgency ground (Regulation 32(2)(c) Public Contracts Regulations 2015). Contracts awarded under extreme urgency and/or this new ground will be published via the new mandatory transparency notice and can therefore be challenged if the use of these exclusions is not deemed to be appropriate.

The new ground is intended to be based on Article III of the World Trade Organisation Agreement on Government Procurement (GPA) and it is envisaged that this will cover action necessary to: (a) protect human, animal or plant life or health; or (b) protect public order or safety. Any action would need to be proportionate and non-discriminatory; the power to declare a 'crisis' is intended to be used "extremely rarely" and will be subject to Parliamentary scrutiny, according to the Government Response. The clarity with which the new ground is sufficiently distinguished from other urgent grounds for limited tendering will be important to avoid confusion for contracting authorities and we await draft legislation to provide further guidance on this issue. One issue which may be critical to contracting authorities is the extent to which individual contract awards may be challenged in the context of a national declaration as, if the national declaration is found to be unlawful, this may undermine the justification for individual contract awards relying on that declaration, leaving them at risk of successful challenge (unless this is specifically catered for in the legislation itself).

Other considerations

Many of the responses to the Government's consultation highlighted the need to embrace innovation in procurement. In response, the Government intends to increase emphasis on pre-market engagement and planning of procurement processes to support the effective use of the new competitive flexible procedure. Innovation is an area that contracting authorities often struggle with in terms of clearly setting out what they are looking for and evaluating tenders so guidance on this is likely to be welcomed. Emphasis on pre-market engagement is unlikely to be enough on its own and so case studies or examples may be beneficial; we await further communication on what guidance the Government intends to issue to assist contracting authorities in this area.

Using the best commercial purchasing tools (Chapter 5)

DPS – Dynamic Market

The Green Paper proposed a new Dynamic Purchasing System called DPS+ to be utilised for all types of procurement. The majority of those involved in the consultation were in favour of the new DPS+ however, there were concerns regarding the ability for the DPS+ to be open for the whole of its lifetime, the necessary resources for when a large number of suppliers were included and the possibility of a large number of DPS+ that may be established. Some stakeholders disagreed with the name DPS+ and the Government has confirmed that the new tool will now be called Dynamic Market. The Dynamic Market will be available for all types of works, services and goods procurements.

Contracting authorities were also concerned about the publication of notices when competitions are carried out by a DPS+ and urged for quarterly batches to be retained. The Government Response reiterated the Government's belief that Dynamic Markets and the new Open Contracting Data Standard will ease the burden of publishing notices by ensuring a quick process. During consultation, queries were also raised regarding why DPS+ was limited to the competitive flexible procedure, and not extended to include the open procedure. The Government Response has confirmed that Dynamic Markets require a two stage process. The first stage is the establishment of the Dynamic Market, including the admission of suppliers meeting the qualification requirements (by considering exclusion grounds and conditions for participation). The second stage is a competition to place a specific contract. Therefore, the Government Response argues, the only suitable procedure is the competitive flexible procedure; the open procedure follows a one stage process and therefore is not suitable.

Issues were also raised regarding the flexibility of DPS+ compared to the existing Qualification Systems used by the utility sector, with the consensus being that the Qualification Systems offer more flexibility. The Government Response confirms that the Government is going to revisit its proposed measures to permit the use of Qualification Systems by utilities but there has been no further clarification as to how, or even if, this will change as yet.

Open and closed frameworks

The Government proposed that there should be open and closed framework agreements as part of the new procurement regime.

Closed frameworks were proposed for up to a maximum duration of four years. These frameworks would be closed to suppliers other than those appointed for their duration. During consultation, concerns were raised by the utilities sector in relation to a potential loss of flexibility, as this would represent a reduction in maximum term from the current eight years to four years for those covered by the Utilities Contracts Regulations 2016 (UCR). The Government Response has therefore confirmed that, for closed frameworks, utilities previously covered by UCR will be permitted to award longer term closed frameworks. In addition, for all types of frameworks, a longer term than the specified maximum term can be awarded provided the justification is published in the tender notice.

Open frameworks were proposed for up to a maximum duration of eight years, for a minimum of two suppliers and with an initial closed period of up to three years. Open frameworks are proposed to allow bidders to join those frameworks at predetermined points (which must be stated in the call for competition) and existing suppliers on those frameworks are to be given the opportunity to submit updated bids at those points, for evaluation alongside any new suppliers (for example, to update pricing).

It is proposed that direct awards and mini-competitions will continue to apply to both closed and open frameworks with more than one supplier. For mini-competitions, contracting authorities will need to evaluate on the same basis as was applied to the award of the framework, albeit more detailed terms can be set out in sub-criteria within an existing criterion. To discourage broad and poorly defined frameworks, it is proposed that there will be a requirement to identify in the tender notice or procurement documents, the nature, scope and overall maximum estimated value of call off contracts.

The Government has also proposed a central register of commercial tools. This will provide a list of frameworks and Dynamic Markets so as to improve transparency and reduce the current duplication and overlap between frameworks.

The overall majority support for open and closed frameworks during consultation is not surprising. Frameworks have long offered a time saving and compliant route to contract award and the move to allow open frameworks should offer contracting authorities flexibility to adapt and keep frameworks current during their lifetime. Provided that the initial process of setting up the framework is well managed, this is likely to offer a favourable new addition to the tools available to contracting authorities when awarding contracts. There will, however, be a need for increased engagement and planning in the initial stages of setting up an open framework to ensure that appropriate thought and planning is given to the pre-determined 'open' points and to ensure compliance with the transparency requirements in relation to the same. 

Next up

In our next article we will examine and summarise the evaluation of bids, including contract award, the selection of preferred bidders and exclusion criteria. Please keep an eye on our website and social media channels for our next instalment.

If our expert procurement lawyers can be of assistance in the meantime, please do not hesitate to get in touch.