A step in the right direction

Sharpe Pritchard’s Procurement Working Group has recently responded to the Government’s Green Paper Transforming Public Procurement, which outlines the Government’s proposals for reforming what it describes as the ‘outdated’ public procurement regime following the UK’s exit from the EU.

The proposals aim to remove the current process driven procedures and create a streamlined and flexible approach that contracting authorities can tailor towards their own needs. The Government also suggests that any increased freedom for contracting authorities must be accompanied by increased transparency, which will be embedded by default throughout the procurement lifecycle.

The Procurement Working Group welcomes the ways in which the Green Paper proposes to streamline and simplify the UK procurement regime, and we fully support the reduction of red tape in running public procurement processes as we consider that this will increase efficiency for public sector clients and contractors alike.

Where streamlining is paired with flexibility, this will increase the confidence of public authority purchasers to be innovative, and to focus on running procurements that achieve value for money, where ‘value’ is viewed in the context of wider strategic goals, rather than to disproportionately focus on the compliance of procurement processes. We agree that an emphasis on transparency needs to go hand-in-hand with increased flexibility and choice for contracting authorities.

We are also pleased to see that efforts are being made to clarify existing areas in the procurement regulations which may remain underused or misunderstood in practice.

We do have concerns however that the introduction of significant additional flexibility, taking place alongside an overhaul of the ‘familiar’, may not have the anticipated effect of encouraging innovation and increasing appetite for bolder strategic decisions, if not sufficiently supported with streamlined, clear rules in legislation.

Contracting authorities may be wary to pin key decisions purely on supporting guidance and statements. We would like to see a firmer commitment to the streamlining of guidance, where appropriate, into the new regulations, rather than there being a new additional body of guidance and policy statements that contracting authorities need to give regard to, in addition to the regulations.

Further, we are concerned that the aspiration of the new regulations being a ‘one stop shop’ for statutory guidance on procurement, may not be achievable if there are key pieces of legislation (e.g. Social Value Act 2012 and Local Government Act 1988 Part II) whose impact on public procurement decisions are not addressed in the new regulations. For similar reasons, it will be helpful if the new regulations are fully and comprehensively compliant with UK’s international trade obligations such as under the EU–UK Trade and Cooperation Agreement (TCA) and the World Trade Organisation’s Agreement on Government Procurement (GPA).

Our response also considered areas which were not expressly touched upon in the Green Paper, notably, the narrow and sometimes restrictive exemptions under the current procurement regulations, for public-to-public co-operative arrangements. We discussed this in a previous Sharpe Edge article.

The Sharpe Pritchard Procurement Working Group will be exploring further opportunities to actively participate in the next stages of reforms. We would also be pleased to discuss our responses to the consultation and receive comments from local authorities on any of the topics covered by the Green Paper.

Rob Hann is the head of local government and Juli Lau a legal director at Sharpe Pritchard LLP

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