In our final post of the year on the key developments in public procurement policy that lawyers should be aware of the focus is on the reforms to the public procurement regime, which were due to be adopted in early December 2013. This post does not consider case law, which is covered in our monthly public procurement case digest. For a summary of the latest cases, see Public procurement case digest – October 2013.
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As stated above, the intention had been for the European Parliament to adopt the new legislative package (incorporating three directives) in early December 2013. However, the Cabinet Office has now indicated that this is unlikely to be the case. The expected date for the plenary session in the European Parliament is now some time in early 2014. This is not an indication that there are political issues over the reforms, just that the task of translating the directives and other associated administration has taken longer than expected. Therefore, it is still safe to assume that the final drafts of the directives will reflect those published by the European Council in September 2013. Although, obviously, nothing is certain until the directives have been adopted.
In the meantime, the Cabinet Office has been busy carrying out a series of informal consultations on aspects of the directives that are expected to provide Member States with discretion as to how the directives are transposed. This had all been part of a drive to get the directives transposed early so that the UK could take advantage of the benefits that Cabinet Office expects the changes to bring. The Cabinet Office has accepted that the delays for the directives will mean that their own transposition plans are also delayed. April 2014 had been mooted as a target date, with an appreciation that this was ambitious. The latest developments make any expected date when the directives will take effect in the UK more of a moving target than ever.
Improved access for SMEs
In September, the Cabinet Office published a consultation on proposals for making public sector procurement more accessible to small and medium sized enterprises (SMEs). In particular, the government stated that it is intending to legislate to extend to the whole public sector (and not just central government) the elimination of the use of PQQs for low value contracts and a requirement to use standard core PQQs. It also proposed that all new contract opportunities, above a threshold of £10,000, should be accessible through the Contracts Finder database and that all contracting authorities must publish data on their procurement spend with SMEs.
In addition, the government consulted on measures to ensure that suppliers down the supply chain benefit from the same standard payment terms that public bodies offer prime contractors to ensure prompt payment for public sector work. The government also sought views on:
- whether a single database for PQQ information is required;
- the extent of harm caused by performance bond requirements; and
- how to encourage e-invoicing.
There have been further developments in the government’s policy on PPPs with HM Treasury and Infrastructure UK publishing guidance on assessing value for money in PFI/PPP projects. The government has also published a response to its consultation on the terms of public sector equity participation in PF2 projects which continues to push some of the more difficult issues (for example, how to encourage new long term equity investors) into the future, but at least a fuller picture is continuing to develop.
The last few months have seen further evidence that public procurement is becoming more and more of a regulated sector with:
- Monitor publishing a statement of issues in respect of an investigation into commissioning of radiosurgery services by NHS England (and its predecessor) and opening another investigation into the commissioning of elective services in Blackpool and the surrounding area.
- The OFT launching a market study into the supply of information and communications technology to the public sector.
While not a regulator, the Public Accounts Committee has also had (another) say on public procurement, publishing a report welcoming the procurement reforms that the government has introduced so far, but making a number of recommendations on, in particular:
- improving governance and accountability;
- improving accessibility of SMEs to government contracts;
- the centralisation of contracts; and
- improving value for the taxpayer.
Welsh Government guidance
Finally, the Welsh Government has provided procurement guidance on blacklisting in the construction industry and joint bidding for public contracts.