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Sun June 20 2021

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Procurement Bill sets out post-Brexit tendering regime

11 May The government intends to introduce legislation to reform public procurement in the next session of parliament.

The Procurement Bill is designed to simplify procurement in the public sector now that the UK is no longer subject to EU public procurement directives.

It would make it easier for public bodies to give contracts to preferred suppliers – those who satisfy specified political outcomes beyond the remit of the contract – regardless of price. The government promises that everything will be much simpler and more transparent than currently.

In December 2020 the government confirmed that below-threshold contracts can be reserved for UK suppliers and/or small suppliers. This applies to supplies and services contracts valued below £122,976 and works contracts below £4,733,252.

The government says that it will “consolidate 350+ EU derived regulations and create a single, uniform framework to allow more freedom for suppliers and the public sector to innovate and work in partnership with the private sector”.

The purpose of the Bill, according to the government’s background briefing document (from which all here below is directly extracted) is to:

● "Reform the UK’s public procurement regime, making it quicker, simpler and better able to meet the country’s needs while remaining compliant with our international obligations. This will replace the current regime which was largely transposed from EU procurement directives.

● "Make public procurement more accessible for new entrants such as small businesses and voluntary, charitable and social enterprises to compete for and win public contracts."

According to the government, the main benefits of the Bill would be:

● "Harnessing the billions that the government spends every year on public procurement to support government priorities to level up and spread opportunity across the country.

● "Embedding transparency throughout the commercial lifecycle from planning to procurement, contract award, and performance evaluation. Procurement data will be published in a standard, open format, so that it is more accessible to anyone.

● "Making UK procurement rules more modern, flexible, innovative and diverse, by allowing the government to consider wider social value when picking suppliers so that taxpayers’ money goes further and has more of a wider benefit for society including the creation of new jobs and skills to drive economic growth.

● "Consolidating the 350+ regulations governing public procurement and creating a single, uniform framework, including for defence procurement, to allow more freedom for the public and private sectors to innovate and work in partnership in public service delivery."

The main elements of the Bill, as described by the government, are:

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● "Enshrining in law the principles of public procurement such as: value for money, public benefit, transparency, integrity, fair treatment of suppliers and non-discrimination.

● "Overhauling the complex and inflexible procurement procedures and replacing them with three simple, modern procedures. This will allow the public sector more scope to negotiate with potential suppliers to deliver innovative new solutions.

● "Requiring buyers to have regard to the government’s strategic priorities for public procurement as set out in a new National Procurement Policy Statement.

● "Introducing procurement processes that allow contracting authorities to buy at pace, for serious situations that are declared a crisis, with strengthened safeguards for transparency.

● "Establishing a single data platform for supplier registration that ensures suppliers only have to submit their data once to qualify for any public sector procurement.

● "Tackling unacceptable behaviour such as supplier fraud through new exclusion rules and giving buyers the tools to properly take account of a bidder’s past performance.

● "Reforming the process for challenging procurement decisions to speed up the review system and make it more accessible and capping the level of damages available to bidders in order to reduce the attractiveness of speculative claims."

The provisions in the Bill will apply to all contracting authorities in England and to contracting authorities carrying out reserved functions in Scotland, Wales and Northern Ireland. The UK government is in discussion with the devolved Welsh and Scottish governments and Northern Ireland executive about the application of some provisions.

The government will also soon publish the first National Procurement Policy Statement (NPPS). The NPPS will set out strategic national priorities for public procurement and help ensure that the power of public procurement is leveraged to support these priorities.

Patricia Moore, UK managing director of quantity surveying firm Turner & Townsend, commented: “Procurement is a vital piece of the puzzle if the construction industry is going to step up to deliver the government’s flagship agendas of levelling up, net zero transition and building back better. Transforming the delivery of major programmes across the country rests on taking a bolder approach to procurement, and there’s no better time to grasp this potential.  Together, Covid-19 and Brexit have presented us with a compelling opportunity to re-evaluate and reimagine the rulebook – building on the steps the government has already taken with the Construction Playbook and the IPA Project Routemap, both of which we are proud to have contributed to.

“As construction’s biggest client, it is government that needs to lead the charge and initiate this change – speeding up and simplifying processes, prioritising local businesses, investing in new technologies and mandating sustainable procurement solutions. 

“As an industry, we need to see project delivery and procurement strategy not just in terms of time, cost and quality, but the wider benefits for communities – achieving net zero targets, and tackling regional inequalities.  Get this right, and it will shape a create a more capable, resilient and internationally competitive construction sector for the future.”

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