The Procurement Bill was introduced into the House of Lords on 11th May 2022 giving us our first sight of the new legislation governing public procurement following the Green Paper and subsequent consultation Transforming Public Procurement.
It had its second reading in the House of Lords and the aim is for it to become law around March 2023 with a transition period of six months before it fully “goes live”.
Like many of our procurement colleagues, we have begun to review and digest the 116 operative provisions, 11 Schedules and accompanying Explanatory Notes and it is particularly interesting to me that for the first time, at least in terms of public procurement law, my colleagues and I do not necessarily have the same first impression of the Bill and so I include a very “lawyerly” disclaimer here that the thoughts set out below are my own and not necessarily representative of my colleagues or Brabners as a whole.
One may argue that historically, the purpose of the public procurement regime in the EU and the UK was to achieve greater value for money in terms of what is being spent with the public purse and to encourage greater competition amongst suppliers to support that purpose. Another overarching principle is the focus on transparency and ensuring public authorities award contracts follow a transparent process and are held accountable for public spending. In this regard the EU Treaty Principles of equality, transparency and proportionality (as codified in Regulation 18 of the Public Contracts Regulations 2015) are very much at the forefront of the existing procurement regime. Public procurement law under the existing regime is derived from the EU and it is evolutionary in nature. For those of us following procurement law for a long time, we saw case-law become codified in the 2004 Directive and subsequently the 2014 Directive as implemented by the Public Contracts Regulations 2015 and its equivalent regulations for Utilities etc.
What then is the intention of the Bill and the new regime? Well perhaps we look back to the government’s intentions post Brexit and even perhaps to statements issued as part of the Brexit campaign, one key driver being to free the UK from EU red tape and bureaucracy. The Bill is intended to create a more flexible and more transparent system and to speed up and simplify public procurement processes.
The new legislation is broadly comparable with the existing regime although there are some variations initially introduced in the Green Paper which have been included and others omitted or possibly to be introduced under secondary legislation. Some sections of the Bill are almost identical to the existing regulations but there are some aspects of the existing regime which are not referred to in the Bill at all. We note the absence of express provisions referencing the Treaty Principles as described above and the inclusion of ‘Procurement Objectives’ being ‘delivering value for money’, ‘maximising public benefit’, ‘sharing information’ and ‘acting with integrity’. There has also been a notable change of language which the Cabinet Office tell us aims to simplify the language used and move away from EU language. However where different language is used, is it purely a change in wording or is it intended to have a different meaning. As lawyers, part of our role is to pore over the detail, question, and analyse the language that is used. If the language has changed, have we not introduced ambiguities, vagaries, room for manoeuvre, in other words, more room for dispute, as procuring authorities and bidders seek clarity on their meaning?
It is important to note that whilst the legislation for Northern Ireland and Wales will be broadly consistent with the Bill, procurement is a devolved area of law and therefore it is likely there will be some differences and an equivalent bill has not been published by the Scottish government.
Our team at Brabners will provide further updates about the Bill as it passes through the Houses of Parliament and wait to see the extent to which any changes are made to it and what those changes will mean in practice for procuring authorities and public sector suppliers. If you have any questions about the Procurement Bill or public procurement law more generally, please do get in touch.
