Post-Brexit Procurement Bill introduced to overhaul UK procurement law

In May 2022, the UK Government introduced a new Procurement Bill. This Bill is the culmination of a process which began in December 2020 with the publication of a report & consultation (Transforming Public Procurement), which sought to collect feedback from the market about how to capitalise on the UK’s exit from the EU (and therefore freedom to legislate for public procurement independently from the relevant EU Directives). The objectives of the Procurement Bill are to create a simpler, more flexible, more transparent process which enables authorities to focus more heavily on social value and environmental objectives. To this end, the Procurement Bill is a consolidated approach to all procurements as opposed to the EU’s approach which saw the regulations divided up by sector (e.g. Utilities, Defence). The drafting of the Procurement Bill reflects the Government’s ambitions to simplify procurement, with less ‘wordy’ drafting and neatly divided up sections which walk through the full lifecycle of a public contract.

The first draft of the Procurement Bill offers provisions which are largely similar to the current framework, but with some notable exceptions. Highlights include:

• Flexible procurement processes: the Procurement Bill does not seek to set out in detail the types of procurement process which can be used by authorities. Instead, the Bill gives substantially more freedom to authorities to design their own processes with a view to encouraging more interaction and negotiation with bidders.
• New principles: the Procurement Bill has done away with the EU general principles and installed a fresh set: value for money, maximising public benefit, sharing information, integrity, equal treatment.
• National Procurement Policy Statement: authorities will now be required to “have regard to” the NPPS, which will require authorities to have greater focus on achievement of social value objectives
• Simpler selection process: suppliers will not be required to submit their basic details for every procurement; the intention is to have a central register of details which will reduce the administrative burden
• Supplier blacklist: suppliers to which mandatory or discretionary exclusion grounds have been found to apply may be added to a ‘supplier debarment list’ which will be a public register (and may therefore have serious consequences for the relevant supplier)
• Off-the-shelf solutions: the Bill aims to steer authorities away from overly prescriptive technical specifications (which tend to drive authorities to choosing bespoke solutions), and towards performance-related specifications (this is likely to result in off-the-shelf solutions becoming more viable for authorities)
• KPIs: for contracts above a certain value, a set of contract Key Performance Indicators are required to be published by the authority. Achievement of these KPIs will be reported on annually, including requirement for publication of a notice in the event of poor performance
• Implied terms: the Bill introduces a handful of implied terms into public contracts, including in relation to payment by authorities which must now be made within 30 days of invoice
• Modified award process: standstill letters are still required (although renamed ‘assessment summaries’), but they do not trigger the standstill period. Instead, the standstill period is now triggered by the contract award notice, which shall also be 8 days instead of 10
• Automatic suspension: the automatic suspension (preventing the authority from entering the contract) will now only kick in where the challenge is issued during that 8-day standstill period, as opposed to currently where the automatic suspension kicks in provided the contract has not been entered into (even if beyond the standstill period)

The Bill is currently progressing through the legislative process, with go-live not expected until at least 2023. Various pieces of secondary legislation will also be required to flesh out elements of the Bill, including the content required to be populated in the various new forms of notice. The Government has clarified that there will be at least 6 months’ warning before go-live, and any procurements commenced prior to this date will be subject to the existing regulations.