The cabinet office has, virtually a year to the day, published its response to its Green Paper: Transforming Public Procurement (which was originally published on 15th December 2020, in anticipation of the UK leaving the EU on 31st December 2020.) The original consultation exercise concluded on 10th March 2021 and, since then, we have heard very little, until finally in late October of this year, we heard mutterings that perhaps things were finally understood to be more involved than had originally been envisaged. Please see our commentary on the original proposals set out in the Green Paper here.
On 6th December 2021 the cabinet office finally published a document summarising the thematic responses to the Green Paper.
The consultation exercise stimulated 619 responses, spread roughly equally across public sector buying teams, suppliers into the sector and other interested groups (eg trade associations, academics, members of the public and legal advisors).
The response from the cabinet office now sets the scene for the introduction of the Procurement Bill at some stage in 2022; the expressed intention being to introduce primary legislation with subordinate regulations being brought into force thereafter to put into play specific elements of the new regime.
While the cabinet office do not feel sufficiently confident to pin their colours to a fixed timetable for implementation, at least there is an acknowledgement that the reforms are significant and will require the sector to have a period of time to familiarise themselves with the new regime. The new timetable is intended to include a 6 month notice of ‘go-live’ come what may; the cabinet office have also promised to provide a series of training sessions and materials to assist with this process. In principle, we are informed that ‘the new regime is unlikely to come into force until 2023 at the earliest.’
The key themes of note to come out of the response document are as follows:
- A continued desire to simplify the current legislative framework for the regulation of public procurement into, as far as possible, a single uniform regulatory framework, while taking into account a number of expressed concerns to avoid the law of unintended consequences to unwittingly introduce issues.
- Retention of the light touch regime, albeit with some improvements to its scope and application, which will become apparent later in the year. Bear in mind that with the introduction of the Health & Care Bill, expected to be early in January 2022, health care services for the purposes of the health service are likely to be removed from the ambit of the Public Contracts Regulations 2015 in any event with the expected introduction of regulations to implement the Provider Selection Regime. We still await sight of those particular regulations specifically in a health context.
- The introduction of a new exclusions framework to make it simpler, clearer and more focussed on suppliers who pose unacceptable risks to the public sector supply chain.
- The publication of detailed guidance for contracting authorities to better understand how to implement transparency requirements proportionately.
- The original proposal to cap damages in procurement challenges which was seen as key to disincentivising tactical challenges holding up contract awards, after significant concerns were raised, has now been dropped.
- The proposal to introduce wider powers for a new unit to monitor compliance with the new regime has been agreed to be amended to seek to stiffen existing governance regimes.
A much clearer direction of travel has been sign-posted by this response document a year after the original consultation exercise was kicked off, but until we see draft legislation (and the flow-down secondary regulations) it will be business as usual for the sector.
We intend to publish further updates as this exercise gains momentum in 2022 and will provide appropriate tailored training aimed at understanding the new obligations as more detail and structure emerges throughout 2022.
If you would like to discuss any of the points raised in this article (or regarding public procurement generally) please contact the author.
