The Procurement Bill, which will reform the existing Procurement Rules, recently completed its journey through Parliament following the required three readings within both the House of Commons and the House of Lords. The Cabinet Office has now published Part 2 of the public consultation on the secondary legislation required to implement the new public procurement regime established by the Procurement Bill.
LUPC Senior Category Manager, Mike Kilner, looks at the main impacts of the Procurement Bill and key elements of Part 2 of the consultation.
This second part of the consultation, which opened 17 July and runs until 25 August 2023, focuses on the transparency provisions and notices that will be used by contracting authorities to fulfil their legal requirements under the Bill. It also includes information on the proposed approach to transitional arrangements for procurements already underway at the time that the new regime enters into force and the position on other legislation that will need to be amended in order for the full provisions of the Bill to take effect. The Government has said it remains committed to providing a minimum of six months’ advance notice of the go-live date of the new regime, which is expected to be some time in Autumn 2024.
The perceived substantial administrative burden of publishing an increased range of information is an inevitable concern amongst contracting authorities and a likely focus amongst responses. With resources already stretched, the increase in notices and amount of information that will be publicly available, could potentially increase the sophistication of potential challenges, as challengers will have more information on which to base a claim. Institution staff are likely to need additional training in relation to data protection and what information cannot be released or must be redacted. The inadvertent release of protected information could expose institutions to data breach claims.
One of the oft discussed requirements is the new Pipeline Notice (PN), whose purpose is to provide the market with advance notice of anticipated public contract opportunities with an estimated value of more than £2 million for the forthcoming 18 months. Part 2 of the public consultation asks for responses to two related questions around whether contracting authorities agree or disagree that PN will usefully provide advance notice to suppliers of forthcoming contracting opportunities and then explores the reasons behind the given response.
The optional Planned Procurement Notice is similar to the current Prior Information Notice (PIN) and may be published to inform the market that a public body intends to publish a Tender Notice at a future date. Like the PIN, publication within certain timescales prior to the main notice permits a reduced tendering period. The latest consultation likewise explores its likely usefulness to contracting authorities and suppliers alike and the reasons behind the given response.
The new Preliminary Market Engagement Notice must be published when a public body chooses to carry out preliminary market engagement. Under the current regime, details of a preliminary market engagement would typically be included in a PIN but the new regime splits this into two separate notices. The consultation explores whether the new notice will further encourage the use of preliminary market engagement in an open and transparent way and the reasons behind the given response.
Tender Notice is the re-naming of the current "contract notice", which must be published to commence a competitive procurement and invite tenders. The consultation asks a question around its effectiveness in advertising an opportunity without dwelling on the main requirements and associated changes; as it does with the Dynamic Market Notice, which similarly replaces the Dynamic Purchasing Systems (DPS) Notice.
A new Transparency Notice (TN) replaces the current voluntary ex-ante transparency notice (VEAT) and must be published where contracting authorities make a direct award, clearly providing sufficient information for interested parties to scrutinise whether grounds for direct award are being applied correctly. The new TN should be published earlier in the procurement process compared to the present VEAT and the consultation looks to explore thoughts on whether the new TN fairly meets transparency needs.
If a contracting authority decides to terminate a tender following publication of a notice, a Procurement Termination Notice can be used to inform the market and close the procurement for the purpose of record keeping within the new central digital platform. The consultation seeks views on whether its contents provide greater transparency than previously. Similar views are sought on the new Assessment Summary, which replaces the current standstill letter and is likewise issued prior to contract award. Each supplier that submitted an assessed tender will privately receive the assessment summary pertaining to their bid and, if they are unsuccessful, they will also receive a copy of the winning supplier’s assessment summary. That copy will be redacted, in accordance with clause 94 of the Bill, to protect any sensitive information.
The new Contract Award Notice must be published when a contracting authority intends to make a contract award following conclusion of the procurement and prior to the contract being executed. Its contents must confirm the date on which the assessment summaries were provided. Post-execution, there is also a new Contract Details Notice, which must be published within 30 days of contract execution or 120 days in the case of light touch contracts. It is envisaged that this notice will contain details on the final value, duration, and extension options within the contract. The Bill also requires the publication of contracts with a value over £5m within 90 days (180 days if the contract is a light touch contract). This threshold has changed from the £2m threshold proposed in the Green Paper. Framework call-offs will publish this notice to inform interested parties that the call off contract has commenced. The consultation seeks views on both notices around meeting required transparency.
Views sought around transparency equally apply to four new notices focused on contract performance. This includes a Payments Compliance Notice published within 30 days of the last day of the reporting period, contracting authorities required to provide specific information every six months (annual previously) detailing how quickly they have paid their suppliers from the date of invoice receipt. A Contract Performance Notice sets out the obligation to publish certain information in relation to a supplier's performance including for example, details in relation to poor performance versus agreement KPIs and any breaches of contract. It appears the notice information will be collated and published on an online, publicly available contract performance register. A Contract Change Notice (CCN) must be published when an above-threshold modification is made to a contract, thus making the decisions more open to scrutiny. No publication is required if the intended modification neither increases nor decreases the value of the contract by 10% or less (in the case of goods or services contracts), or 15% or less (in the case of works contracts). The Green Paper had originally stated that publication of a CCN would commence a mandatory standstill period however, this has now been amended to a voluntary standstill period. Finally, a Contract Termination Notice must be published within 30 days of the date of contract termination regardless if down to ‘natural expiry’ or otherwise, therefore highlighting the end of the contract to interested parties.
Part 2 of the public consultation outlines the role of the new Central Digital Platform, which includes the means for suppliers to register and submit their core supplier information to the platform, in more detail and seeks out views on whether there is sufficient clarity about its operation.
The approach taken to transitional arrangements are also set out in the second consultation to attempt to ensure the new procurement regime will cause as little disruption as possible for contracts already awarded or procurements that have started but not yet been awarded.
To respond to the consultation and for further information click here. The consultation opened on 17 July and closes on 25th August at 11:45pm.
