Recent PPNs and Cases, and an update on the UK Procurement Bill

Public Procurement Notices

The UK Government publishes guidance on best practice for public procurement and which in-scope contracting authorities should have regard to; these are referred to as Public Procurement Notices (PPNs).

PPNs published since our Spring update include:

1. The Commercial Playbooks (PPN 06/23): which requires in-scope contracting authorities to take into account currently available playbooks (e.g. The Sourcing Playbook) as part of their commercial activities;
2. Security Classifications Policy (PPN 07/23): which provides details of the updates to the Government Security Classifications Policy (including updated protective security controls requirements, principles, and guidance to in-scope contracting authorities); and
3. Using Standard Contracts (PPN 08/23): publication of three standard contracts for use by in-scope contracting authorities when purchasing bespoke goods or services, or goods or services that cannot be facilitated by a suitable government framework. The three standard contracts are: (i) The Model Services Contract, (ii) The Mid-Tier Contract, and (iii) The Short Form Contract.

Case Law

James Waste Management LLP v Essex County Council [2023] EWHC 1157 (TCC) considered whether a variation of an existing awarded contract was substantial enough that it would no longer be permitted by the narrow interpretation of Regulation 72 of the Public Contracts Regulations 2015 (PCR 2015). Regulation 72 PCR 2015 cases are few and far between, and this case provided necessary clarification to the Regulation 72(8) PCR 2015 test of whether a modification is considered substantial. It also provided guidance on the requirements to rely on clear, precise, and unequivocal review clauses under regulation 72(1)(a) PCR 2015.

International Game Technology v The Gambling Commission [2023] EWHC 1961 (TCC) considered the requirements for a claimant to have standing under the Concession Contract Regulations 2016, and consequently whether the claimant (a sub-contractor to the prime bidder) was an economic operator to whom duty was owed. The Court held that no claim could be brought by the claimant.

Procurement Bill

The draft Procurement Bill has passed its third reading in both Houses and is now in the final stages of considering amendments, with an expected go-live of October 2024. Until such time, the existing legislation will continue to apply.

The UK Government has recently closed consultations on draft secondary legislation:

1. Part 1 – Lists, calculations, and further definitions (closed 28 July 2023); and
2. Part 2 – Transparency / notices, transitional arrangements, and consequential amendments (closed 25 August 2023).

We currently await the UK Government’s response to feedback received.