Planned changes for public procurement

One of the biggest changes now the UK has left the EU is that it is no longer subject to the Union's Procurement Regulations. However, the public sector does remain bound by the UK Public Contracts Regulations (PCR) 2015, which transpose the EU regulations into national law.

As of January, all public-sector opportunities have to be advertised on a new e-notification service called Find a Tender, which has taken over from the Official Journal of the European Union (OJEU) in this regard.

The UK government is now also taking the opportunity to review PCR 2015. Its green paper Transforming Public Procurement was published in December. This acknowledges that there are shortcomings in the current processes, and seeks a way to make them more suitable for the sector as a whole.

Consultation on the green paper closes on 10 March, and procurement professionals around the UK are paying close attention to see how the proposals and responses to them may inform future policies.

Good examples of how to run a procurement process that encourages these objectives are detailed in its Construction Playbook, also published in December; this sets out key policies and guidance for the way public works programmes are assessed, procured and executed.

It is worth nothing, however, that any future amendments will still have to follow the general principles of the World Trade Organization's Agreement on Government Procurement (GPA), to which all members – including the UK – are signed up.

This would mean ensuring that the principles of public procurement are embedded in law, and regardless of the UK's exit from EU would expand on the three existing principles under the Treaty of Rome – transparency, integrity, and fair treatment for suppliers – by adding the criteria of value for money, efficiency, and non-discrimination.

One of the more interesting proposals concerns what is called the competitive flexible procedure, which would include only those rules necessary to comply with the proposed principles of public procurement and the GPA. The procedure resembles the existing light-touch regime, although that only applies to procure social, health and other specific services defined in Schedule 3 of the PCR 2015.

The competitive flexible procedure would replace some existing arrangements, and give commercial teams the flexibility to design a quicker, PCR-compliant procurement process that meets their needs as well as those of the market – which can only be a good thing.

The green paper also discusses the possibility of open frameworks to increase flexibility: frameworks are currently locked, meaning that once suppliers are appointed there is no mechanism to add further new suppliers during the term of the agreement. The proposed framework would allow new organisations to bid, and for already appointed organisations to update their previous, successful bids at specified points to reflect prevailing market conditions.

Under the new flexible framework, the current framework length would be changed from four to eight years. It would also allow providers to reassess their frameworks after three years, and enable them to bring in new suppliers if necessary, representing another change from the current approach.

DPSs are not new to the public-sector procurement process, and were, for example, an integral part of the original Public Contracts Regulations of 2006. The rules were made more user-friendly under PCR 2015 after an earlier review, but are set to be reviewed again as part of the current consultation.

Increasing the flexibility of DPS as proposed could see it fit for a wider range of purposes, with the government envisaging creation of DPS+, a form of GPA multi-use list that new suppliers could join at any time with no maximum duration. Procurements under DPS+ could follow the new competitive flexible procedure, and be used for more than just common goods and services.

Experts are predicting that more rigorous investigation of the past performance of suppliers will be required as well, to inform bid decisions. As it stands, past performance can be considered when looking at a bidder's application for tender, but it is difficult to exclude them if they are found wanting. What we may see in future is a list of suppliers whose poor previous performance could exclude them from procurement activity.

There is also a proposed requirement to provide more information throughout the life of a contract. This could be achieved through the Open Contracting Data Standard (OCDS), for instance; the OCDS is used by more than 30 governments around the world, and would allow more transparency and quicker transfer of information. Supply chains would run much more smoothly as a result, and the suppliers could be engaged at the correct points.

Overall, any changes to public-sector procurement in the next few years are likely to be positive ones, from which the sector can greatly benefit. The introduction of increased flexibility will be key, allowing procurement and built environment specialists to work together and ensure that the best results are achieved for clients.

Related competencies include: Procurement and tendering, Risk management