Background to the Bill

Changes to procurement law have long been promised by the Government since the UK officially left the European Union in January 2016 and debate has intensified with issues such as the PPE ‘VIP lane’ Scandal during the Covid-19 pandemic. The Procurement Bill, was finally introduced into the House of Lords last week, following the Queen’s Speech commitment that “public sector procurement will be simplified to provide new opportunities for small businesses”. The Bill will provide  legislation for the Government to create the UK’s own legal framework.

While the attention of the Westminster village has been elsewhere, the Bill’s significance should not be overlooked. A staggering £300 billion is spent on public procurement contracts each year. There have been high expectations for the Bill given its purpose as one of the key pieces of post-Brexit procurement legislation, which in the words of the Minister for Brexit Opportunities and Government Efficiency, Jacob Rees-Mogg MP, would “create a simpler and more transparent system that promotes competition among businesses and reassures taxpayers that every penny of their money is well spent.”

Publication

Now the Procurement Bill has been published and parliamentary debate has begun, how has it fared against these expectations? The initial response has been mixed. On the one hand, the Bill clearly aims to support small businesses by making public procurement more accessible to SMEs, and voluntary, charitable and social enterprises, by enabling them to compete more effectively for public contracts.

Content and contention

Further, public procurement principles outlined in the Bill will be put on a statutory footing including ‘value for money’; ‘maximising public benefit,’ ‘sharing information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions,’ and ‘acting and being seen to act, with integrity.’ This extends to more than just the steps taken to award a contract and includes those relating to contract management through to the exit from a contract.

These are all are sound sentiments, but key elements that had been suggested earlier in the consultative phase of the process appear to have been downgraded or dropped entirely. Take, for example, the ‘Procurement Review Unit,’ a new monitoring body that was to keep a watchful eye for any breaches of the procurement regulations and recommend sanctions to the Minister of the Cabinet Office. This was promised as part of the Government’s response to the Green Paper consultation, but has since been downgraded to the much vaguer sounding, “appropriate authority”. Peers were anxious to understand how this new authority will enforce procurement regulations given that its recommendations will not be binding.

A point of contention, and likely a hot topic of debate in future parliamentary sessions, is the gap that has been left in the Bill on its commitment on social value. An area of great relevance to the Government’s Levelling Up goals, and recognised in the Green Paper proposals, the embedding of this concept within the procurement system through appropriate guidance and reporting requirements was strangely lacking given previous promises.

The Procurement Bill moves to its Committee Stage in the House of Lords this month, where these issues of detail will be debated further as amendments to the Bill are tabled. In tandem, we at DRD Partnership have developed a Special Report on the Bill, outlining its history so far; the main elements of the Bill; and key political, industry and legal commentary on it alongside an estimate of the Bill’s likely progress before going live next year.

To read the Report in full click here.