Procurement Pulse UK – May 2024

This is the Procurement Pulse, DLA Piper’s bulletin for clients with an interest in developments in public procurement law. In this issue we report on recent UK case-law, policy and legislative developments.

RECENT COURT JUDGMENTS

English Court of Appeal considers when a breach of the procurement rules is “sufficiently serious” to merit damages

Braceurself Limited v NHS England

This case considers the impact of a breach of the Public Contract Regulations 2015 on the awarding of damages. At first instance the High Court found a breach in a procurement for a GBP32.7 million NHS contract but deemed it not “sufficiently serious” for an award of damages in accordance with Francovich v Italy due to its minor and excusable nature. The claimant appealed. The Court of Appeal upheld the High Court’s decision. It emphasised that the nature and quality of the breach rather than the consequences of the breach for the damaged party, determines if it is sufficiently serious to warrant damages. This judgment is important as it suggests a higher threshold for “sufficiently serious” breaches in procurement claims.

POLICY, GUIDANCE AND OTHER DEVELOPMENTS

Procurement Act 2023 “go-live” date announced

On 22 April 2024, the Cabinet Office announced an intended “go-live” date for the Procurement Act 2023 of 28 October 2024. This date will be confirmed in Regulations which are expected to be passed this month. Existing legislation will continue to apply to procurements started under the old rules. This announcement marks the beginning of the six-month preparation period in respect of the new regime. The Cabinet Office has stated that during this time a programme of learning will be published to support stakeholders in implementing the changes.

Several documents relating to the Act have been published by the UK Government since our last bulletin, including:

• The UK Government’s Consultation Response
• Draft Implementing Regulations
• Suite of Technical Guidance Documents on the Act

We have recently launched our UK public procurement reform webpage which collates expert analysis on the new procurement regime, commentary on developments and key materials and resources. Recent publications on our webpage include:

• The New Procurement Act 2023 Exclusion and debarment of suppliers: What’s new?
• Contract Management under the Procurement Act 2023: What should I know? 
• Explaining the Procurement Regulations 2024

You can also view our recent webinar on Running a Procurement under the Procurement Act and download the slides here.

New procurement policy notes

Several new procurement policy notes have been issued by the UK and Scottish Governments:

• PPN 01/24 which introduces an optional standard carbon reduction contract schedule that can be included in Government contracts
• PPN 02/24 providing optional questions to help identify the use of Artificial Intelligence in procurements, and in the delivery of Government Services
• PPN 03/24 which updates the Selection Questionnaire and accompanying statutory guidance and replaces PPN 03/23
• SPPN 1/24 which updates the Fair Work First in procurement guidance

We have produced an article which discusses the key points of PPN 02/24 on AI in Public Procurement on our Technology Blog here.

Defence Procurement: The Single Source Contract Amendment Regulations

The Single Source Contract (Amendment) Regulations 2024 came into force on 1 April 2024. Single source contracts are defence contracts entered into without competition. The Regulations create a framework for the regulation of such contracts and define contracts which are “substantially for defence purposes”.

If you are interested in defence procurement you can enrol onto our webinar on the Impact of the Procurement Act on UK Defence Procurement which takes place on 15 May 2024 here.

Healthcare Procurement: The Provider Selection Regime

The Provider Selection Regime came into force on 1 January 2024. The Regime is a set of rules which govern the arrangement of healthcare services in England. The aim of the rules is to move away from the expectation of competitive tendering in all circumstances and towards collaboration across the system. NHS England published the final version of its statutory guidance for the new Regime on 8 January 2024. For more information on the Regime, its purpose, and the selection processes available to relevant authorities read our article here.

EU Foreign Subsidies Regulation investigations opened into public procurement procedures

The European Commission has launched its first investigations into public procurement procedures under the Foreign Subsidies Regulation. The investigations relate to subsidies received by two bidders in a Romanian competition which the Commission considers may distort the EU single market. These investigations serve as a reminder that all businesses with a European presence and receiving subsidies from non-EU countries must comply with the Regulation when bidding for EU public contracts.

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