Following the Covid-19 VIP lane scandals, the government promised to transform public procurement. We were excited by the vision proposed in the UK’s Green Paper for new procurement legislation now we have left the EU. It offered a once-in-a-generation opportunity to transform this vital government function, covering a third of all public spending and which is currently slow, paper-based and outdated.
A transformational vision for public procurement, to our minds, would be a market where small and mid-sized British businesses would compete on a level playing field, where government knows (and citizens can follow) who they contract with, why and for how much, where local councils can innovate but also where they can also end contracts with poor performers or bad actors like Gazprom, and where purchases were sustainable and economically inclusive. In these challenging times, we want the maximum value for money for every taxpayer pound.
So, we are puzzled that the new Procurement Bill, published in the House of Lords last week, contains a number of critical gaps.
The Green Paper promised a single rulebook with transparency across the full life cycle of public contracts. As currently drafted, this Bill does not create that clear, unambiguous imperative in primary legislation. A heavy reliance on secondary regulation and too many exemptions creates regulatory uncertainty, threatens a lack of parliamentary scrutiny and puts too much power at the discretion of the responsible minister.
The Bill also avoids a clear commitment to transparency and accountability in either its Principles or Objectives, although this is central to UN model laws and sorely needed following the loss of public trust in pandemic procurement. The use of digital tools, open data and a unified register for contracting information are all missing. Unless clearly referenced in the primary legislation, details in the secondary regulations on these points may be open to challenge.
This all risks losing the whole purpose of the reforms to modernize and improve the UK’s procurement after leaving the EU.
But transformation change is possible. We have seen it in other countries, so why should the British public settle for anything less?
To help fix things, we have developed a detailed 10-point improvement plan sourcing the inputs of experts on market competition, procurement law, transparency, open government and economic crime, company registration, beneficial ownership and tax.
Our ten points, in brief, are:
- Limit all the exemptions so we have a single rulebook for UK procurement
- Add in a clear objective and principle on transparency for procurement (like the rest of the world)
- Clearly reference digital tools, open data and a unified register for contracting information in the legislation
- Clearly reference and empower the planned Procurement Review Unit
- Add a duty to consider planned procurement notices and pre-market engagement notices (like the duty to consider ‘lots’)
- Tighten the language on disclosure exemptions in relation to commercial confidentiality
- Tighten supplier exclusion and debarment register provisions
- Add key Boardman Review recommendations into the conflict of interest provisions
- Make clearer provisions for an improved dispute resolution regime focused on fixing procurements as opposed to litigation in the courts
- Avoid reliance on “regulatory dark matter” and ministerial discretion (especially without a countervailing duty of transparency)
Read the full expert review of the bill with explanations point-by-point here and follow @UKACCoalition and @opencontracting on Twitter to stay up to date with our feedback as we review the recent Cabinet Office guidance and track the bill’s evolution and amendments.
As the cost of living crisis looms large, the number of British people relying on government support will rise. With more than £300 billion spent on procurement annually – the largest single item of government spending – now more than ever we cannot afford to waste a single penny.
A fair, transparent, competitive, digital and data-driven procurement market with a single rulebook is the only way to make sure we prevent future waste and scandal, to rebuild public trust in these times of economic uncertainty and growing financial hardship for so many.