Head of Dispute Resolution | Head of Procurement | Banking and Finance
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What are the Green Paper Reforms?
On 15 December 2020, the Government published its long-awaited Green Paper on Transforming Public Procurement, a set of detailed proposals intended to overhaul our outdated public procurement rules and, whatever your views on Brexit, to capitalise on an opportunity created by the UK leaving the EU.
We published a high level summary of the Reforms earlier this year, but in a nutshell, the reason for the proposals is that many consider the existing public procurement regime to be too restrictive, meaning that too much attention is focused on red tape for buyers and suppliers, rather than on ensuring value and transparency.
The proposals contained in the Green Paper are intended to speed up and simplify our existing procurement processes, put value for money at their heart, and unleash opportunities for small businesses, charities, and social enterprises to innovate in public service delivery. They include:
The Green Paper was open for consultation until March 2021, and in June 2021 the Cabinet Office published a PPN confirming the Government's intention to bring forward legislation to ensure that all contracting authorities are required to have regard to the National Procurement Policy Statement when undertaking procurements.
In August, the Welsh Government announced that it will work with the UK Government to include Welsh contracting authorities in the UK Procurement Reform Bill (the "Procurement Bill"). In a recent update, the Welsh Government also confirmed that it has been working with its UK counterparts to fully understand the details of the Procurement Bill to help ensure that it reflects Welsh needs.
In October 2021 the Cabinet Office circulated an update stating that it had worked through the feedback from the consultation and that its thinking had changed in several areas as a result of the feedback. In the coming weeks it will publish a summary of the responses received and details of what the Government intends to do in response to these. Watch this space!
An area we'll be watching closely is the controversial proposal to cap damages in most cases to legal fees plus 1.5x bid costs. The Government's rationale is that this would stand as a deterrent against poor procurement practice and prevent public funds from being spent ineffectively. However, in our view, the prospect of a substantial damages claims weighs heavy with authorities and genuinely acts as a deterrent in itself – improving procurement practice as a corollary. Therefore, we'll be interested to see the consultation feedback on this and whether the Government's line of thinking moves in response to that.
We are still waiting to see what the Procurement Bill will look like, but it's anticipated that it will reflect to a large degree the proposals in the Green Paper, subject to some tweaks.
Whilst much emphasis has been placed on the need for contracting authorities to get ready for the change, it's likely that the current position will be maintained for another year or so at the very least. In terms of timing, there is still no firm indication as to the date on which the rules will change. We think it's unlikely that the new regime will come into force before 2023 at the very earliest.
If you'd like more information or to discuss the proposed reforms with us and what they might mean for your business, please do get in touch.