The Government’s procurement Green Paper*, sets out long-planned and significant changes to the UK’s procurement rules. They include reforms to urgency exemptions for purchase without undertaking a full competed procurement process. The Government’s press release says:
“The plans will also make procurement more transparent and effective during times of crisis where government needs to act quickly to ensure vital goods and services are bought. Throughout the COVID pandemic, the UK, along with many other countries internationally, has relied on direct awards to ensure that vital supplies, such as life-saving PPE, have been bought quickly and to high standards. The new measures will bring more competition into this process, by changing the rules to encourage more competitive buying in a quick time frame. This will allow for multiple companies to bid for emergency work, without slowing the process down in times of emergency.”
The Green Paper proposes replacing the incumbent procurement procedures with three “simple, modern procedures”, one of which is “a limited tendering procedure that buyers can use in certain circumstances, such as in crisis or extreme urgency.”
Extreme urgency is a continuation in the vein of Regulation 32(2)(c) Public Contracts Regulations 2015, but “crisis” represents a new ground for using this limited tendering procedure. A crisis will be defined as:
- an event which clearly exceeds the dimensions of harmful events in everyday life and which substantially endangers or restricts the life or health of people; and
- where measures are required to protect public morals, order or safety; or
- where measures are required to protect human, animal or plant life or health.
Declaring a crisis would be a power reserved to the Minister for the Cabinet Office, although contracting authorities would be able to petition him to declare one.
This procedure will allow the contracting authority to engage with a degree of competition (where appropriate), rather than relying on direct awards. The Government hopes that this will enable the contracting authority to obtain some of the benefits of competitive tendering even during local or national emergencies, while also providing greater certainty against the risk of challenges. To this end, the Green Paper proposes that this procedure be excluded from the possibility of automatic suspension preventing contract award and delay (except where the limited tender procedure has not been followed).
The limited tendering procedure should be effective for purchasing by contracting authorities in times of crisis or circumstances of extreme urgency. As a new process, purchasing authorities and participants will need to get used to how it is most effectively used – potentially ahead of future urgent circumstances arising such that it can be deployed knowledgeably in a crisis.
New plans set out to transform procurement, providing more value for money and benefitting small business