Public Procurement Reform – Frequently Asked Questions

On 6 December 2021, the Cabinet Office published the Government’s response to its consultation on the 2020 green paper, “Transforming Public Procurement”. In this post we provide answers to frequently asked questions based on the information provided by the Cabinet Office to date. This blog forms part of a wider series on the Government’s procurement law reforms. As and when new information is provided by the Government on the questions below, we will publish updated FAQs. If you wish to submit a question for inclusion in future updated FAQs DLA Piper will publish please email ukgovernmentblog@dlapiper.com.

Why are the Government looking to implement reforms?

Following the UK’s exit from the European Union, the Government views that it has ‘a historic opportunity‘ to introduce reforms to an area of law derived almost entirely from European law.  The reforms aim to assert UK priorities, promoting innovation and agile procurement, streamlining rules, dealing with issues in the current regime and allowing for crisis procurement.

What are the principle areas of the proposed reforms?

The principle areas of the proposed changes include:

• The consolidation of the existing set of procurement regulations into a single framework.
• The introduction of the new additional principle of ‘fair treatment of suppliers‘ encompassing the existing principle of equal treatment and a new principle of ‘procedural fairness during procurement procedures‘.
• The removal of the principle of proportionality as an overarching principle which will instead be incorporated into the new procedural fairness principle.
• Replacing existing procurement processes with three new procedures:
  • The ‘flexible competitive procedure’;
  • The ‘open procedure’; and
  • The ‘limited tendering procedure’.
• A legislative mechanism for the Government to declare a crisis so that authorities can conduct procurements through adapted parameters for crisis situations.
• New transparency measures.
• The introduction of a centrally managed debarment list.

Please note the links below to our other blogs which go into more detail on the above proposed changes.

When will the proposals come into force?

No firm timeline has yet been given. The Cabinet Office’s response only states that the new regime is unlikely to come into force until 2023 at the earliest. Before this can happen, the Government must introduce and pass a Bill through Parliament, make implementing regulations and issue statutory guidance. Even if this process were to begin in 2022, a start date in 2023 looks challenging, particularly as the Government committed to a 6-month period between the passage of any primary legislation and the coming into force of the new regime.

What is the next stage in the introduction of the reforms?

A Bill will be introduced to Parliament, almost certainly after the Queen’s Speech in May, although whether the Bill will be introduced before or after the summer recess remains a mystery at this stage. Any Bill will take several months to pass both Houses, although is less likely to create controversy as other, recent measures introduced by the Government. So, we expect a relatively smooth passage should Parliamentary time permit. There is potential for the Government to publish draft regulations and statutory guidance with the Bill, which will certainly aid understanding of precisely how the reforms will operate.

How can we prepare?

The response from the Cabinet Office states their intention to produce resources including statutory and non-statutory guidance on the key elements of the new regulatory framework. This potentially includes publishing templates, model procedures and case studies. In addition the Cabinet Office response states that they intend to roll out a programme of learning and development for stakeholders, subject to future funding. Until such publication of further materials, interested stakeholders should keep up to date with this blog which will cover any new information provided on the procurement law reforms. DLA Piper will also provide further materials and insight on the new regime.

As stated above if you would like to submit questions for inclusion in any future updated FAQs please email ukgovernmentblog@dlapiper.com.

Previous commentary from DLA Piper on the Cabinet Office’s response can be found at the following links:

Public procurement reform – ‘Crisis? what crisis’

Procurement Challenges – the future

Public procurement reform … the times they are a-changin’