Reforming Public Procurement in the UK - Government response to Consultation published on 6 December 2021

In December 2020, the UK Cabinet Office set out wide ranging proposals for the post Brexit future of public procurement legislation in England with the publication of a Green Paper, 'Transforming Public Procurement'. The Cabinet Office subsequently ran a consultation series and sought representations from contracting authorities and stakeholders including suppliers, industry bodies and other interested parties. On 6 December 2021 the UK government published the results of that consultation which you can access here.

In what is set to be the most extensive overhaul of UK public procurement law since the introduction of the current legislation, most respondents agreed with the proposals to simplify the current legislation as far as possible into a single, uniform regulatory framework.

Should the proposed reforms and simplification of the current regime be passed into legislation, it will be welcome news for many contracting authorities and suppliers who spend a considerable amount of time and resources navigating their way through the often complex rules of UK public procurement law.

Below, are some of the key outcomes from the consultation responses:

The Light Touch Regime is to remain: There was some speculation in the market that the Light Touch Regime was to be withdrawn, however, the government have agreed with respondents that it is helpful to retain the regime. Although, the Green Paper indicates the government's intentions to make some improvements to its scope and application.

Exclusion of Suppliers: A number of changes have been recommended to strengthen the approach to excluding suppliers from participating in procurements for misconduct such as fraud, corruption or poor performance. The government intends to introduce a new exclusions framework which will be clearer and more focused on suppliers who pose an unacceptable risk to, amongst other things, effective competition for contracts, reliable delivery, the environment, public funds or the rights of employees.  We await detailed guidance in respect of the exclusion of suppliers framework. 

Cap on level of damages available to bidders that successfully challenge a contract award decision: Arguably, the most controversial of all of the proposals in the Green paper, the Government have decided not be take this proposal forward, but are considering other measures aimed at resolving disputes faster which would reduce the need to pay compensatory damages to losing bidders after contracts have been signed.

Transparency: Contracting authorities and suppliers that are familiar with the current legislative regime will be aware, the principle of Transparency is a key feature in UK public procurement law and the requirements are not always easy to understand. There was support from respondents to increase the focus on Transparency, however, the government wish to avoid placing unnecessarily burdensome obligations on contracting authorities in this regard. The government have therefore indicated that it intends to publish detailed guidance to ensure that that the transparency requirements are proportionate and simple for contracting authorities and suppliers to understand.

Northern Ireland

The Northern Ireland Executive are having discussions with the government about whether some provisions may be extended to all contracting authorities in Northern Ireland.

In Northern Ireland rules in respect of the rights of employees for suppliers bidding for government contracts came into effect in September 2021, with more changes planned for June 2022.

Timescales

The new regime is unlikely to come into force until 2023, at the earliest.

Importantly, the Green Paper acknowledged that the changes proposed to the regulatory framework would not in themselves deliver faster and more effective procurement, without contracting authorities also having the capability and capacity to realise the benefits.

For further information please contact a member of the ALG Belfast Public Procurement team.

Date published: 8 December 2021