The Procurement Bill has now been published and has already had its first reading in Parliament. The content of this Bill was trailed in the Government’s response to its Green Paper on transforming public procurement in the UK, which we reported on at the beginning of this year.
In broad terms, most of the bill is as expected and anticipated by the Government’s response to the original consultation document. The Bill proposes that the current draft of separate procurement regulations is replaced by a single piece of legislation. This is to be welcomed, and does represent a streamlining of sorts, but don’t be fooled by the lighter weight of the new Bill as it currently stands. A lot of the detail still remains to be seen, as it will be contained in separate, supplementary regulations, which we do not yet have details of. For example, we wait to see what services will be caught by the new “light touch contract” provisions.
As previously mentioned, the current six procurement procedures will be reduced to two: either a single-stage award; or “any other competitive tendering procedure” as the contracting authority considers appropriate and as is proportionate having regard to the nature, complexity and cost of the contract. Guidance on what is appropriate or proportionate is expected in the future. However, one suspects this won’t result in dramatic changes in practice immediately, with contracting authorities preferring to stick with tried and tested procedures before opting for anything particularly innovative. And there is still some ability to directly award contracts in situations similar to those anticipated in the current Regulations.
We note with interest the new, simplified, definition of “contracting authority” (Section 1). While it covers largely the same ground as the concept of a “body governed by public law” in the current Regulations, it is an easier formulation to understand (we no longer need to grapple with what “established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character” means). But quite how much it represents a departure remains to be seen. This will be of particular relevance to our non-profit making clients, such as charities in receipt of significant amounts of grant-in-aid or sports’ governing bodies, who regularly have to assess whether they are caught by the procurement rules or not (in the absence of being specifically identified in the existing Regulations as being a contracting authority).
The Bill now needs to work its way through Parliament. And once it is passed, contracting authorities will have at least six months until implementation to prepare for the changes. We continue to watch with interest and will provide further updates as the new legislation and its requirements become clearer.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2022