The UK Procurement Bill - An Overview

The Procurement Bill, UK Government’s attempt to “shake up our outdated procurement system”¹ is currently going through the second reading stage in the House of Commons. Whilst it is likely that it will be late in 2023 before the Procurement Bill comes into force, it is critical for suppliers and contracting authorities to appreciate the changes this new procurement regime is likely to bring about.

This article summarises the publications we have produced, providing a one-stop shop for the insight our procurement specialists have shared and offers a snapshot into further publications DLA Piper are preparing and planning for.

Public Procurement Reform – Procurement Bill updates
Andy Batty, published 12 May 2022

This publication provides an overview of the contents of the Procurement Bill and the stages which the bill will go through before receiving royal assent (currently expected to take place later in 2023). In addition, Andy provides a brief summary of two further announcements made during the Queen’s Speech that impact on public procurement: (1) the Boycotts, Divestments and Sanctions Bill and (2) the Trade (Australia and New Zealand) Bill.

Whilst this publication doesn’t do away with the need to read the contents of the Procurement Bill itself, Andy identifies what we believe to be the key areas. This includes the overriding objectives of value for money, maximising public benefit, sharing information and integrity. We also see that the bill introduces a ‘streamlining of procurement procedure’ into three methods:

1. Open procedure
2. Other competitive tendering procedure
3. Direct award

The Procurement Bill also emphasises the need for strong management/planning, both at the pre-contract and post-award stages.

Importantly, Andy points out that the Government has committed to a 6 month transition phase from royal assent through to the act coming into full force and effect.

Transparency, Transparency, Transparency – A summary of the changes to the transparency obligations in the Procurement Bill
Rebecca Walker, published 16 June 2022

In many of our publications concerning the Procurement Bill, the principle of transparency is a common theme. A key point which Rebecca’s publication reflects on, however, is the shift from a mandatory principle of transparency (under the Public Contracts Regulations) and the new procurement objectives, which no longer hold the same weight/obligation which is imposed on contracting authorities under the old regime.

This article includes a visual representation of the transparency reforms included in the Procurement Bill and Rebecca scratches beneath the surface of these adjustments and what they mean for contracting authorities. Importantly, it seems clear that the new regime does impose a significant burden on contracting authorities to implement a strong administration process establishing transparency throughout the contract lifecycle rather than having an express mandatory principle of transparency.

Rebecca expands on this by suggesting that the various triggers to publish notices of contract decisions throughout the process is particularly cumbersome and there is undoubtedly going to be a steep learning curve when the Procurement Bill comes into force.

Procurement Challenges – A new regime but not a revolution 
Jessica Hill, and Martyn Scott, published 7 July 2022

This article highlights the number of potential changes which were considered in the Green Paper setting out the points under consideration in these reforms but in the context of procurement challenges, the article highlights that many of the more significant proposed changes such as a cap on damages have not been implemented and that the view of Jess and Martyn is that the change to the legal test when determining whether to maintain the automatic suspension will not significantly alter the current position.

Same as it ever was? Has the Procurement Bill seized a once in a lifetime opportunity?
Matthew Cliff, published 20 June 2022

Matthew comments on the differences between the old regime and the new proposals, whether the Procurement Bill is fit for purpose and how the bill has already evolved from its inception in the Green Paper in December 2020.

A particular difference between the Procurement Bill and the EU regime is the change in language. Matthew questions the significance of this shift and whether it will have a material impact on the application of the new legislation, but it is interesting to see a clear change in terminology post-Brexit.

As highlighted in the article, one of the main aims of the Procurement Bill is to create a single, uniform framework for public procurement, replacing the old suite of legislation where contracting authorities had to adhere to the applicable rules depending on the substance of the procurement in question. Nevertheless, whilst a harmonised approach is indeed welcome, we are sceptical of this aim, not least due to the inevitable volume of secondary legislation and guidance required once the Procurement Bill comes into force.

Another issue for contracting authorities to engage with under the Procurement Bill is the additional flexibility the legislation intends to offer. In particular, the new regime introduces a single-stage competitive tendering procedure. In reality, however, authorities have become so accustomed to the EU regime that engagement with the flexible methods on offer may see limited take-up during the early years of the law coming into force. Whether the Procurement Bill will really achieve its aims from day one is therefore open to question.

There have also been noticeable adjustments made to the proposals as set out in the Procurement Bill since it was first mooted in the Green Paper. The principles of proportionality and transparency have been left behind as overarching principles.

We also attach links to our two most recent webinars on the Procurement bill which focus on the planning of a procurement under the new regime and a sector specific talk on utilities and defence.

Planning and Commencing a Procurement

Sector Specific Procurement Regimes

Further publications

Furthermore, as the Procurement Bill progresses through the various stages in parliament, we will provide further updates and articles by way of official publications and blog posts to keep you up to date with the latest developments. In the meantime, our UK Government Blog page includes some additional publications relevant to public procurement.

We also invite you to explore Global Government Contracting. Global Government Contracting supports businesses to source and win new government contracting opportunities, and supports governments, and other regulated entities, to do business with the private sector. It features country-specific information, procurement articles, webinars and spotlight interviews.