Government responds to ‘Transforming public procurement’ Green Paper

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On 6 December 2021, the government published its response to the ‘Transforming public procurement’ Green Paper consulted on between December 2020 and March 2021. A summary can be found in the ‘Key themes’ section on pages 6 to 8. Among other things, the government intends to introduce a new exclusions framework which will be simpler, clearer and more focused on suppliers who pose an unacceptable risk to effective competition for contracts, reliable delivery, and protection of the public, the environment, public funds, national security interests or the rights of employees.

The new public procurement regime is unlikely to come into force until 2023 at the earliest. Walker Morris will continue to monitor and report on key developments.

In our earlier briefing, we looked at the proposals for fair and fast challenges to procurement decisions, which included capping the level of damages available to aggrieved bidders to legal fees and 1.5 x bid costs, reducing the attractiveness of speculative claims. The government has decided not to proceed with that proposal. It is also not intending to go ahead with a process of independent contracting authority review, or with the idea of using an existing tribunal to deal with low value claims and issues relating to ongoing competitions. The objectives of a faster and simpler court process are targeted instead through the planned introduction of intended reforms to processes such as decisions on written pleadings, early and enhanced disclosure and a dedicated procurement judge.

The proposal that pre-contractual remedies should have stated primacy over post-contractual damages will not be introduced, partly because of the decision not to pursue the damages cap, but also because there will be more opportunity for pre-contractual remedies in a quicker system where the impact of delay is not so great as with current court timescales.

The government intends to introduce a new test into legislation on the lifting of automatic suspensions, believing that it would be helpful to all parties to clarify the test for use in a procurement-specific context. The government is still working through the potential options but envisages that the new test will be a simple, single limb test which provides for suspensions to be lifted where there are overriding consequences for the various interests concerned. This will include the impact on public service delivery.

The government also intends to proceed with the proposal that removal of automatic suspension is appropriate in crisis and extremely urgent circumstances to encourage the use of informal competition. It agrees that the terms for urgent contracting need to be clear, measured and proportionate. There will be a requirement for a notice prior to (or concurrent with) contract award which will ensure greater transparency and scrutiny of contracts relying on these measures for extreme urgency. This will be followed up by the publication of a notice containing details of the contract. Due to the absence of a standstill requirement with these contracts, the remedy of ineffectiveness will remain available where suppliers can show that the grounds have been relied upon inappropriately.

As to whether debrief letters need no longer be mandated in the context of the proposed transparency requirements in the new regime, the government intends to go ahead with this proposal, but with some amendments to seek to address various stakeholder concerns.