Transparency in public procurement
Obligations under the new procurement regime have become clearer with the publication by the Government of the second part of its consultation on the secondary legislation that it expects to make under the Procurement Bill (Bill).
This part of the consultation focuses on the transparency provisions and notices that will be used by contracting authorities. It also includes information on the transitional arrangements for procurements already commenced at the time the new regime enters into force.
The consultation includes draft Procurement (Transparency) Regulations (draft SI) which contain the detailed information that must be included within the notices. The Welsh Government will consult and legislate separately in respect of regulations for devolved Welsh procurement.
The key notices and other proposals in the second part of the consultation are:
This notice will provide the market with advance notice of public contract opportunities with an estimated value of more than £2 million which a contracting authority proposes to enter into in the forthcoming 18 months. It will include the nature of what is to be procured, when it is expected to be advertised and when delivery will commence.
Planned Procurement Notice
The notice is intended to enable interested suppliers to decide if an upcoming procurement is something they wish to bid for. If publication of this notice occurs at least 40 days (and no longer than one year) before publication of the tender notice, the authority may benefit from a reduced tendering period (minimum ten days).
Preliminary Market Engagement Notice
While not mandatory, the Bill provides for contracting authorities to publish this notice and to conduct preliminary market engagement. Publication of the notice should take place prior to publishing a tender notice and contain a description of the engagement process.
The Bill requires contracting authorities to publish a tender notice to commence a competitive tendering procedure. A tender notice will act as an invitation to submit a tender under the open procedure and could act as an invitation to tender or an invitation to submit a request to participate under the competitive flexible procedure. It must set out the procurement process to be followed. These requirements also apply to frameworks with the addition of some framework-specific information. Tender notices are also required in respect of certain publicly available high-value below-threshold contracts.
Utilities Dynamic Market and Dynamic Market Notice
The Bill replaces dynamic purchasing and qualification systems with a Dynamic Market (DM). DMs can be established by contracting authorities and utilities which can also establish a Utilities Dynamic Market (UDM). A dynamic market notice must be published at various times relating to the establishment of a DM or UDM, its operation and when it ceases to operate. A UDM can be established either by reference to a DM notice or a Qualifying Utilities Dynamic Market (QUDM) notice. The purpose of a QUDM notice is to notify suppliers of the intention to establish a UDM and to provide details of its establishment, modification and termination.
The Bill provides that a contracting authority must publish a transparency notice before awarding a contract under the direct award provisions. This must include the grounds for the award and any required justification, the estimated value of the contract and the date when the contract will be entered into.
Procurement Termination Notice
This notice informs the market that a contracting authority has decided not to proceed with a procurement. It is only necessary to publish this notice if a tender notice or transparency notice had been published for the procurement.
The Bill requires that an assessment summary must be provided to any supplier that submitted an assessed tender in relation to a competitive procurement except when awarding a call-off contract under a framework. The summary will provide a supplier with the scores their tender was awarded and an explanation as to why particular scores were given against each award criterion.
Each supplier will privately receive the assessment summary relating to their bid and, if they are unsuccessful, they will also receive a copy of the winning supplier’s assessment summary, redacted as necessary. Assessment summaries must be provided at the same time to all suppliers and before the contract award notice can be published.
Contract Award Notice
This notice is intended to notify the market of the outcome of a procurement process and that a contract (including a framework) will shortly be entered into. Subject to some exceptions, the notice commences a standstill period for potential challenges to the award decision.
It will not be permissible to enter into a contract following a competitive tender procedure without having first published the contract award notice and issued assessment summaries. The contract award notice will require contracting authorities to confirm the date on which the assessment summaries were provided.
Contract Details Notice
The purpose of the notice is to inform interested parties that the contracting authority has entered into a contract. The notice will also, where relevant, record information on at least three KPIs for each contract in accordance with the requirements of the Bill. The notice is also required upon the establishment of, and the letting of contracts under, a framework.
Contract Performance Notice
Subject to certain exceptions, this notice is intended to record both the performance of the supplier against published KPIs and information relating to any serious breach of contract, although not necessarily on one notice. The publication of KPIs and breach of contract information is intended to provide transparency on supplier performance and to provide contracting authorities with objective information as to which suppliers are subject to the discretionary exclusion grounds for breach of contract and poor performance.
Contract Change Notice
Subject to certain exceptions, the Bill provides that before modifying a public contract or a “convertible contract”, a contracting authority must publish a contract change notice (CCN). The CCN must include information as to whether and why the modification is permitted under the Bill, details of any change to the estimated value or the term of the contract, the estimated date when the contract will be modified and will take effect and whether a voluntary standstill period applies.
Contract Termination Notice
This notice will inform stakeholders that a contract has been terminated and must include the reasons for terminating the contract, the date when the contract was terminated and the estimated value of the contract. Authorities must also publish specified information when a supplier has breached a public contract and that breach results in termination of the contract.
Central Digital Platform
The Cabinet Office is developing a digital platform for the new regime. The draft SI provides information about the operation of the platform and confirms that where contracting authorities are required to publish notices and documents, this will be done through the digital platform.
Before a supplier participates in a covered procurement, contracting authorities must ensure suppliers are registered on the platform and confirm they have submitted their core supplier information (as set out in the draft SI) to the platform. As a general rule, where a contracting authority requires any of this core supplier information it must initially obtain it from the platform. Suppliers will be responsible for ensuring that the information they authorise to be submitted from the central digital platform to the relevant authority is current and correct at the end of the tendering period.
All contracting authorities, suppliers and procurement procedures (and their individual notices) will have a unique identifier on the central platform. Contracting authorities will be required to include these identifiers in all procurements when publishing notices and other information to the central digital platform. The draft SI defines the different types of identifiers and confirms how they are generated and provided.
The Cabinet Office intends to draft regulations tomestablish the transitional arrangements for procurements already commenced at the time that the new regime enters into force. The intent is that the new regime will cause as little disruption as possible for contracts already awarded under the present regulations or procurements that have started but have not yet been awarded when the new regime comes into effect.
The consultation document states that the fundamental principle is that procurements that “start” after the effective date of the new legislation must be conducted by reference to the new regime only, while those that have been conducted, or have started, under the existing regime should continue to rely on those regulations. The consultation sets out some suggested tests for what could constitute procurements that will be subject to the existing regime.
Any non-competitive procurements entered into later than three months after the implementation date will be subject to the new regime, unless a voluntary transparency (“VEAT”) notice has already been published for the procurement.
Procurements that have been started under the old regime will continue to the end of the contracting lifecycle for that process as outlined in the consultation document.
Contracting authorities should ensure they are familiar with the provisions of the proposed regulations when they come into force so that they are prepared to apply them in future procurements.