Christopher Brennan: Good afternoon, everyone.
Welcome to our webinar on six months of the Procurement Act, glad you could all make it. One or two items of housekeeping.
So, without further ado.
These are the main items I'm going to talk about this afternoon. There are one or two others as well, actually, interspersed between them, but these are the main ones where we've been seeing particularly interesting things happen over the past six months around these topics.
So, just by way of a very brief reminder of why we're here and how we got here, the Procurement Act is now in full force. It came into full force on February the 24th. Parts of it were actually enforced before then, but... we don't worry about those. It is now in full force as from that date. It consolidates four previous sets of regulations, as I'm sure you'll know, into one new all-embracing piece of primary legislation, so previous secondary legislation becomes current primary legislation.
The Act applies to England, Wales, and Northern Ireland to procurement within those three jurisdictions, but only to limited procurement activity in Scotland. That is to say, where procurement that might happen in Scotland actually relates to reserved functions rather than devolved functions. Where it relates to devolved functions, obviously the Procurement Act doesn't apply up there. The act is supported by various other stuff. Notably, the Procurement Regulations 2024, which give us the mechanical side of our new procurement regime, if you like, setting out for example, how the central digital platform operates, and prescribing the contents of the multitude of new notices that have to be published now under the Act.
In addition to the regulations, there are procurement policy notes, PPNs, the National Procurement Policy Statement, so Procurement policy-related publications, as well as a comprehensive set of government guidance on the Procurement Act, which I'll come on to talk about.
So, first topic. Plan, define, procure, manage - what does that mean? Well, the Cabinet Office guidance is split down into each of these four phases. Now, the act itself isn't. So, the guidance itself, as well as its extent, because there's quite a lot of it is actually really handy. It divides a procurement exercise into the preliminary stage, the plan stage, the defined stage.
Only then the procure stage, and once a contract is up and running, the manage stage and on that manage stage, this is quite new really, it's a new area of influence for procurement legislation in this country because some might say that procurement law is perhaps venturing into somewhere it might not really need to go, contract management, but nevertheless, it does to an extent, and we'll see, how that applies, of note, on the contract management side.
Authorities as you may know, are required in many cases now, to set at least three key performance indicators, KPIs, and then to monitor performance of the contractor against them, and publish any details of poor performance. All that's new, it wasn't in the previous regime at all. Of course, there are questions, perhaps, around the impact that might make suppliers a bit coy about what KPIs they agree? Might they only agree to KPIs that they can really, really deliver without, without question.
What are the impacts for their reputation if they don't deliver on KPIs? Might poor performance be much more visible to rivals? Today under the Act, the answer, I think, is yes and might the supplier's share price perhaps ultimately be impacted? Well, we are only six months in, and obviously in legislative terms, six months, perhaps, isn't that long a time. So, time will probably tell, we can't say at the moment, but these are things around, certainly, the contract management side to look out for as time goes on.
National Security next is a topic which we've noticed can come up. So, the plan phase of a procurement includes a determination of how a particular contract classifies is it goods, services, or works? Is it a special regime contract, a light-touch contract, or a concession, or a utilities contract? Or is it exempt from the Act altogether for one of the many reasons which or why a particular contract could be exempt from the Act?
And there is, on that latter point, a category now, in Schedule 2 of subject matter exempted contracts and those can include contracts which are exempted on grounds of national security, but, of course, there are many other grounds for exemption, including subject matter exemption in Schedule 2.
Now, paragraph 25 of Schedule 2 classifies as exempt a contract that the contracting authority determines should not, in the interests of national security, be the subject of this Act, or a part of this Act by the way, a contract. Which a contractual authority can determine is exempt on national security grounds doesn't have to be a defence and security contract, which is another type of special regime contract prescribed by the Act. It's ultimately up to a contracting authority to determine whether for a particular reason which will obviously, you know, need to be documented very, very well, you know whether or not a particular contract is exempt on national security grounds.
Now, you might think that allows contractual authority an awful lot of legroom, well, actually, perhaps it doesn't, really, because there is guidance in, the, guidance document, which is linked on this slide, and obviously this is a live link when you get the slide.
Paragraphs 48 to 59 of that guidance don't define, or actually make clear that the Act doesn't define. National Security and that's deliberate. It's designed to keep the concept of National Security flexible, so, you could be thinking, for example, about you know, contracts which need to be kept secure, for, obviously, you know the purposes of perhaps preventing cyber-attacks, or whatever it might be and so before deciding to classify contracts as exempt on National Security grounds, yes, it's up to the authority to determine that but really not before reading that guidance and documenting very robustly the reasons why the determination is that way.
Technical specifications is my next topic and this has come about, really, as a result of Section 56 of the Act. I've paired Section 56 up with the Grenfell findings and there's an interesting question here. Will the Act make buildings safer?
Now, there has, I think we'd all agree, been a key opportunity here to toughen up the procurement regime in the area of preventing substandard products from landing on the order book and this really centres on how the rules on technical specifications in Section 56 of the Act are framed and I think there's been a bit of a missed opportunity, and I'll explain why.
Now, we know that in the Grenfell matter, there was a lot that was wrong with that particular authority's approach to procurement, and in particular, of course, procurement of the offending materials. The real mischief, though, was that the contractor was able to install inferior cladding to that building.
Does the Act, therefore, go far enough in preventing that sort of thing from happening in future? Well, I don't think so and I'd be interested in your view because the Act requires authorities to recognize international standards, which include EU standards, as well as standards in the countries, for example, in which any treaty state supplier under the Act might be established and it requires authority to recognize those standards as equivalent to UK standards unless, essentially authorities can prove that the international standard is somehow deficient or inferior to the UK standard.
Now, my point here is that unless an authority can do that, and there might actually be practically implications, or indeed difficulties, in being able to do that, an authority might find itself in effect be forced to accept an inferior standard of product for example. So, strict UK standards were adopted but UK contract authorities may find themselves forced to accept international standards by virtue of the wording of Section 56, even if those standards are inferior.
Because proving the inferiority of an international standard might not be an easy matter. It could cost time, for a start, money and resource, for example, in deploying expert opinions to decide, or to help the authority decide, and of course, all of that could potentially add a lot of burden to procurement exercises.
Ultimately, UK contractual authorities might find it hard to disprove equivalence in international standards given, notably, the wide diversity in different countries safety regulations.
So, Section 56... I think perhaps misses an opportunity to really toughen the technical, specification rules, in particular, in the light of the Grenfell disaster.
A point, next to make on this. You may or may not have heard of it, there's a bill, in Parliament, the public procurement British Goods and Services Bill. It's due, apparently, for a second reading on the 31st of October and if passed into law, it would do two things, amend the Public Services Social Value Act of 2012, so as to require authorities to consider how buying British might secure economic and social well-being so, adding another thing to consider into that pre-procurement statutory duty imposed by the Social Value Act.
Secondly, it would amend the Procurement Act and it would do so by requiring contract award notices, and we'll come on to talk about those in a while, to document how the authority has complied with its social value act obligations, which would, of course, then, by then include [0.1] and what effect the procurement thresholds have had on British suppliers in the particular procurement.
Now, the question, of course, here is is this protectionism? Would it cut across the rest of the Act? What about the duty to treaty state suppliers, which, is given prominence by the Act to the extent whereby UK contracting authorities are obliged to treat, treaty state supply as no less favourably than UK suppliers.
So, I think there are quite a lot of unanswered questions around that one.
Debarment is my next topic.
The first debarment's investigation, which incidentally was launched very soon after the Procurement Act came into being, has been paused um it wasn't or is and the investigation into seven suppliers which were criticized by the Grenfell Inquiry. it was put on hold recently, pending an ongoing criminal investigation into those suppliers' role in that disaster and the decision to pause, the decision of the Public Procurement Review Service which of course is part of the procurement review unit settled under the Act.
The decision of the review service to pause it follows contact from the Met Police and the Crown Prosecution Service saying that the debarment investigations could unintentionally prejudice criminal investigations and any subsequent criminal proceedings.
The result, then, as of today, is that, as of now, the debarment list, link there, is empty. You won't find any names on it at all, as yet. Now, there's no word right now on whether debarment investigations will resume or will be completed. We're going to have to watch that one but as of now, no one is on the debarment list.
Next topic, conflicts of interest. Now, authorities under the Act have to contend with a somewhat toughened up, set of rules around conflicts of interest. Not least, in order to give confidence to suppliers that suppliers are bidding in procurement processes, which have integrity, and of course, you'll perhaps, be thinking here back to Section 12 of the Act, where one of the objectives of procurement in the new era is for authorities to apt to be seen to be acting with integrity. So, as part of that, the Act tried to strengthen authorities' duties around conflicts of interest.
Sections 81 to 83 are the sections in play here. Authorities have to exclude a supplier if there is no way to manage a conflict effectively, for example, through mechanisms and devices such as information barriers, separation protocols, firewalls, ethical walls agreements, and so on and so forth. However, there is, old case law, which essentially said that exclusion of a supplier, so barring a supplier from bidding on the basis of a conflict of interest should really only ever be seen as a last resort and there's no reason, I think, to interpret they act any differently. So, I think that authorities shouldn't get over the trigger-happy about excluding suppliers, but should instead make absolutely sure that they do investigate whether there are ways, and indeed, if so, implement those ways to manage conflicts of interest effectively, through the mechanisms, devices, shown on this slide.
Do the rules, though, around conflicts of interest go far enough, might the Act's concept of a conflict of interest as set out in 81 to 83 be a little bit too narrow? Section 81 actually appears exhaustive so, remember, in the Act, we don't I don't think we necessarily have to interpret it purposely in the way that we did the previous EU-derived rules.
Section 81 says there is a conflict of interest in relation to a covered procurement. If a person acting for or on behalf of the contracting authority in relation to the procurement has a conflict of interest, or B, a minister has a conflict of interest.
Now, interest includes personal, professional, financial. Interestingly can be direct or indirect, as you probably expect, but if Section 81, if the italic section there is exhaustive, as indeed, it appears to read as though it is, where does that leave other people? So, for example, incumbent suppliers, what about bidder-to-bidder conflicts? Conflicts perhaps involving a supplier who might be a prime bidder in one bids, but perhaps a subcontractor to another bidder on the same procurement? What do we do then?
It seems that the Act actually leaves questions like that noticeably unanswered. What about personal relationships, also, between a bidder's officer and an authority officer who might just not happen to be involved in the procurement, isn't acting in relation to the procurement. So, I think there are going to be topics here which will warrant and may end up, being subject to further investigation and who knows challenges in future months and years. Wait and see.
Now something about the competitive flexible procedure.
So, complex, as it's often affectionately now referred to has, in our experience, been quite widely taken up, we've seen rather more complexes than open procedures, for example, under the Act complex has been taken up, for example, in light-touch procurements that we've seen and in others and reactions to the new procedure have, I think it's fair to say, generally been very positive. It seems that it's especially useful, as indeed, it's intended to be for tailoring to be suited to the aims of the particular procurement.
In other words, we've moved away from one size fits all and we now have an onus on contracting authorities, or perhaps an onus and a freedom for contracting authority is to design their procurements to suit the ends of the procurement. So, this, for example, can allow for stages such as presentations, which we're seeing, interviews, which we're seeing, demos, site visits and so on and so forth and all of that, I think, is welcome news to contractual authorities, at least who for example, might be, running a procurement for something to be installed in a building, or for works. But of course, also for others, ICT, for example, contractual parties have to ensure having said all that, that the procedure is a proportionate means of awarding the contract.
Having regard to its nature, complexity, and cost and again, that is perhaps to be expected, proportionality is everything, it always has been, and certainly, an overly complex or indeed an overly simplified procurement might not suit the ends, ultimately of the procurement and the contract There is the flexibility to limit supplier numbers, a bit like a restricted procedure or competitive dialogue under the old rules.
Generally, or indeed in respect to particular rounds or processes, however, an authority mustn't let back in suppliers who were previously knocked out, it's not that flexible, or let in new suppliers partway along the procurement, it's not that flexible either, but authorities can exclude suppliers who are non-UK and non-treaty state suppliers, so anyone from a total third country can be excluded as part of a competitive, flexible procedure, useful.
Transparency, next. Interesting here, there's a big difference in the Act between what it says about transparency and what the previous regime did. So, Reg 18 of the previous regime. the PCR said, contractual authorities shall act in a transparent and proportionate manner. So, transparency has long been a pillar of public procurement permeating every aspect of it. does that remain the case under the Act? Yes, actually. But how does transparency play out in the Act? Well, transparency, if you ask me, just got more transparent.
But the Act has managed. To pull that off without actually using the word transparent even once. The only time the word transparency is used is when referring to a transparency notice.
So how does the Act basically ensure transparency without saying the word, the T-word?
Well, for a start, one of the objectives of procurement under the Act is sharing information for the purposes of allowing suppliers and others to understand the authority's procurement policies and decisions, that's in Section 12, so, with a strong hint there, it's all about sharing information. Does that mean it's straightforward? Well...whereas in the PCRs, there was an absolute obligation to act in transparent manner, shall act in a transparent manner, Reg 18. We now see a more muted, perhaps, obligation in the Act in carrying out a procurement. A contracting authority must have regard to the importance of sharing information, well, that has me scratching my head a little bit, because what does "have regard to the importance of" mean? Does "be transparent, has be transparent" just lost a bit of its...vavavoom. Well, actually, not really, the Act doesn't use the word transparent, nor does it frame an obligation to act transparently as an absolute requirement. What it does do is to require authorities to publish, and indeed, to keep on publishing. It introduces no fewer than 14 new forms of public notices, most of which are mandatory, most of the time. As well as requiring publication of various contract data, and indeed contracts in particular situations. Now, there is a useful bits and bobs section, which I won't talk to in this hour at the end of this presentation, so you'll see it when you get the slides, but in it, we have included a visual aid on the various new notices, so you'll know what's required and when.
So, that's transparency.
Direct award and modification, next topic.
So there is more scope under the Act for direct awarding. We're, perhaps happy to see there's clarity on when direct rewards can be made, contract awards, of course, by default, have to follow a competitive tendering procedure when the procurement is covered unless a direct award justification applies. So, there is in the Act schedule 5, I think it is, which sets out the situations in which direct award is allowed.
Now, the Act also allows for what we might call crisis direct awards to protect life, safety, or public order and those direct award grounds can arise when regulations are prescribed and made by a minister for the purpose, so, for example, if there is a pandemic or some sort of national emergency, meaning that a whole lot of contracts suddenly need to be directly awarded regulations can be passed allowing those direct rewards, and those then are added to the direct award grounds for the purposes of the Act it's not necessarily the case that if and when those regulations or any such regulations were made, they'd be set in stone forever. They probably wouldn't.
The government would have to keep them under review. Happily, no such regulations have yet been made and we hope, of course, it won't for a long time.
Now, above threshold direct awards have to be preceded by a transparency notice. Almost, without exception, there is an exception, I think I'm right in saying, for something called user choice contracts under the light-touch regime but it's pretty much without exception. Authorities can, however, even when making a direct award, when contemplating a direct award, still do various things before they do so in order to ensure value for money.
For example, price comparisons, benchmarking, or whatever it might be and we probably shouldn't understate the importance of that, especially given the Section 12 objective of course, which includes value for money, ensuring that value for money comes about through public procurement.
So, I think perhaps a message for authorities, just jump to make a direct award, think about what might usefully or indeed, of necessity need to be done prior to a direct award in order to ensure that the objective of the Act are still being fulfilled. Modifications, contract changes, as they're called, under the Act, justifications for unprocured contract changes under the Act are thankfully now better aligned to the direct award grounds. Under the old rules, there was always a bit of a mismatch between the two. The rules of direct award were a bit different from the rules on modifications, safe harbours were different but they're more aligned now. There is a new one, under the Act, a new ground for change, a justification, a safe harbour, which is materialization of a known risk. What's that all about? Well, it's really sort of saying, well, if we know that there is a risk of a particular thing happening at some point during this contract and we know what the risk is, so that we can articulate it in the contract, then, further down the line, if that known risk, which has been mentioned in the contract did materialize, we could make the necessary variation to the contract to react to it.
That's essentially what it is. I remember seeing some comments from a client on a document where this was actually discussed and debated, and lots of comments about, sort of, asteroid attacks and things like that, which probably, might be slightly above and beyond, but nevertheless, you hopefully get the gist.
However, there is around modifications, contract changes, much more transparency now. Contract change notices have to precede the implementation of any changes and, of course, there could be quite a knock-on effect there. It's likely to raise the stakes considerably and could mean that contract changes won't escape under the radar, like, I think many, many contract modifications under the old rules used to do and they might attract more legal challenges as time goes on. We only think have one notable case at the moment, James Waste. An Essex County Council around a contract variation, time will tell, but the numbers of legal challenges based on modifications to contracts regarding the Act might well shoot up as time goes by.
Now, assessment summaries. So, we've got to the end of our procurement, we've decided who's won and who's lost. It's time now to break the news to the bidders and, actually, to the world at large, as you'll find out.
Now, under the pre-procurement Act regime, so the PCRs and the other sets of regulations, this was the information that needed to go into a standstill letter. Okay? So, this was Regulation 86 for the Public Contracts Regulations and of course, for procurement that are still in play under the old regulations. It's still the standstill letters which are governed by regulation 86, which need to be sent out and this is the information they have to contain but, under the Act, things have changed and rather than standstill letters or contract award notifications, or whatever we might have been wont to call them we now have assessment summaries. So, at the end of a procurement, which is governed by the Act we have to issue assessment summaries. So, if we've been used to standstill letters containing certain information, and perhaps some of us have the unhappy task of drafting lengthy comparisons between an unsuccessful bid and the characteristics and relative advantages of a successful bid. Thankfully, we're spared quite a bit of that work now with assessment summaries and there's a difference, suppliers, as well as contracting authorities, will see a difference in how the information is going to be presented, in processes governed by the Act.
So, the feedback at contract award stage, so prior to the standstill starting, the feedback has to contain an assessment summary concerning the bidder's tender.
In other words, the scores, and there's quite a lot of information, we'll see that in a moment, it needs to go in there. A copy of the preferred bidder's assessment summary with any confidential information redacted from it, and potentially additional information where relevant to the contract award decision.
Now, does the standstill period get triggered by sending out the assessment summary?
In the way that the standstill period gets triggered under Reg 86 of the PCR.
By sending out an award decision notice/ standstill letter, well no it doesn't, the standstill, which, by the way, isn't 10 calendar days, isn't, but which instead, under the Act is now 8 working days. That standstill period only starts with the publication of a thing called a contract award notice. So, this is one of the 14 new forms of notice which I mentioned earlier. This is a contract award notice.
So, we've sent out our assessment summary, we've pushed those out to the bidders but standstill only starts when we publish our contract award notice.
If then, there is no challenge within the standstill period, the contract gets entered into and then, after that a contract details notice has to be published within 30 days. Oh, I think it's 90 days if it's a light touch contract. So, what do assessment summaries have to contain?
So, you're seeing the diagram on the previous slide, but one in relation to the requirements under Reg 86, this is the corresponding diagram for assessment summaries under the Act and by the way, the contents of an assessment summary are actually listed out, not in the Act.
But in Regulation 31 of the Procurement Regulations 2024, that's the set of regulations which, as I said at the start really sort of set out, kind of, the mechanics and some of the detail around the workings and the operational side of the Act so these are the requirements, obviously, there's an assessment summary for the most advantageous tender, the MAT and that information with, as I say, confidential information redacted from it has to be issued to the other tenderers, together with the equivalent information on their own tender, where assessed, of course, against the award criteria. Plus, any other explanation of why they didn't win, which might, for example, be because they were adjudged to have submitted an abnormally low bid, or perhaps, in an open procedure, they failed to meet the conditions for participation and so were not successful in having the remainder of their bid evaluated. Likewise, perhaps in a complex issue to all tenderers has to be simultaneous and then, only when the assessment summaries have been pushed out does the public, publication of a contract award notice then follow.
So, what are the consequences of assessment summaries? Well, first of all they can be bulky, because there's quite a lot of detail that that needs to be, set up in them. Have a look at Regulation 31 of the 2024 regs because of that, they might be best dealt with, depending on your procurement and your numbers of award criteria and sub-criteria, by the way, all of which have to be included might be best dealt with in your spreadsheet rather than trying to do so in, for example, Word document or a PDF.
Unsuccessful tenderers see all of the information about the winning tenderer bar the confidential information that the winning tenderer itself sees but, despite that possible bulk the upside is that the relative advantages, the whole relative advantages thing has gone. There will be no need, when they come to prepare their assessment summaries, for authority to suspend ages of loads of time, drawing narrative comparisons of characteristics and relative advantages of the successful tender as compared with the unsuccessful tender of the recipient receiving the, a particular notice that, aspect should save contractual authorities a lot of time and of course, it's then up to suppliers to put the two together and to work out from that why they've been unsuccessful.
Contract award notices I said, had come onto this and of course, it's this that triggers the standstill.
However, there's a wrinkle, because the intention to award the contract is published via the contract award notice, not the fact that a contract has been awarded, because it's pre-contract now but it's not just published to the tenderers, it's published to the whole world, it's published on Finder Tender and that means that anyone, and not just the unsuccessful tenderer, or tenderers, could, in theory, object to the award during a standstill period before any contract gets signed.
Would a legal challenge from a non-tenderer actually, trigger an automatic suspension, as would a challenge from a tenderer? Well, potentially, yes it could, and this, again, is new.
If the challenger is a supplier, so somebody who might have wanted to bid for this particular contract then that supplier could see a contract award notice and decide to mount a legal challenge so, as long as that, challenger is a supplier to whom a statutory duty under the Act is owed, i.e. a UK or a Treaty state supplier and as long as that supplier has suffered or is at risk of suffering lawful damage, which it might be able to establish then presumably, it has standing to challenge.
So, this could include, for example, a supplier who thinks that what's been awarded as detailed and described by the Contra War Notice, isn't what was originally advertised, that there's been movement between the beginning and the end of the procurement and that, for example, if the contracts award notice had indicated a result that was four square with what was advertised then that supply would have participated and it only didn't, because it didn't think that what was going to be awarded is what is now about to be awarded and therefore, the supply could say that it has suffered or is it at risk of suffering loss or damage as a result seems to me that this is entirely plausible. So, automatic suspensions could be taken up by a lot more entities than merely by suppliers as under the previous regime.
Incidentally, also, contract award notices could be challengeable if they don't contain enough detail.
I do think that there is case law, from the UK, the Faraday case, which related to a voluntary transparency notice under the old regime which might, potentially, stand a chance of getting picked up if any of the new notices prescribed by the Act don't contain sufficient detail to allow a reader to see properly and clearly what is going on, and indeed everything that's going on. So, we counsel against too little detail in a procurement Act notice.
What else has to be published on award?
Well, after award, contract details notice. So, alongside the contract details notice, which I think has to become, has to be published 30 days after award authorities also have to publish a copy of the contract if its estimated value is more than five million pounds. Now, the publication of the contract doesn't necessarily need to be simultaneous with the contract details notice, whereas the contract details notice is 30 days after contract award. The publication of the actual contracts, again, with any reductions done has to be within 90 days or 180 for light-touch contracts.
Incidentally, I think for a contract details notice it's 30 days after contract signature for a fully regulated procurement, but 120 days, I think for a contract details notice for a light touch contract. I think that's right. Anyway it's all there in the ACT regulations.
Key takeaways, then. Well, much more visibility. I think the transparency that made it into the Act in a big way. It's essential to ensure that any justifications, processes and explanations really given for anything are robust. There is now a new and more granular format for feedback in the form of assessment summaries and, of course, as part of that it might be necessary to get on board a wider spectrum of staff when preparing and compiling feedback, perhaps more functions will need to be involved in order to get the feedback right in the assessment summary than has previously been the case. A word or two now on contract management so, there are various, facets to contract management, as already signalled under the Act. Firstly, for individual contracts valued at £5 million or more authorities must do these things and also publish these things so, there's quite a lot of visibility now, around contract management, and we're already finding ourselves asked to get involved in advice on what is involved in these various aspects.
So, we'll see more of this going forward, and a lot more of it interestingly, not only do contract changes and, but you also know, contract variations and direct awards need to be published as previously explained but also, contract breach, details of position poor performance contract terminations for whatever reason, whether for breach, on discharge, or indeed just on expiry and terminations of procurement processes without an award.
Those also have to be, or details of those with, I think, also reasons have to be published so the whole transparency thing has gained a lot of extra wheels under the Act. What might that mean? Well, we've already hinted here, suppliers looking to limit the agreed KPIs to the bare minimum. We may well see that, I don't know whether any of you might already have seen that? Suppliers wanting control over what gets published, we might see that supply is only agreeing KPIs that they can easily meet and being difficult about KPIs that they don't think they're going to be able to meet easily so much more debate, perhaps, between suppliers and authorities' pre-contract around suitable KPIs to include. Published performance levels might damage a supplier's reputation hence the caution that we might see from suppliers as mentioned above and again, early days now, but I think time will, tell on that.
My next question was, can old case law be used as a guide to interpreting the Act?
Well, first of all, there is some good case law out there including UK case law. Already, there's also EU case law, which might still be persuasive and so, you know, there is potential for courts still to follow it and these are some of the topics around which there is good case law. I haven't listed out all the case law, because if I did, it would be quite a long list but there is quite a bit.
Now, how then might that old case law translate through to the act. Well, it's clear that in some respects case law has been overwritten by the Act because of the differences in the way the Act approaches certain things and attacks certain topics that probably does in effect, extinguish some of the old case law but by no means all of it and I think that it is true to say that where the underlying objective of a particular provision of the Act is the same as that of the relevant bit of the law that it replaces then there actually seems to be no reason at all why that case law should not continue to be at least persuasive or even binding. So, for example, you know, there might be, case law around abnormally low tenders, for example that we might find being applied, there are perhaps others too, there's quite a lot of case law, admittedly quite old, and not all saying the same thing around the old [Chestnuts River].
What is a contracting authority?
What if the status of bodies that - we're not really sure whether they're contracting authorities or not might those debates still continue, and that case will still be arguably relevant under the Act as it was under the old regime and I think the answer to that is yes. There may, having said that, of course, be a distinction between old UK case law and old EU case law. So, old English case law specifically, could where it's on topic in relation to an issue under the Act be binding.
Case law, which has previously been persuasive, so, for example, Scottish case law, that still be persuasive under the Act.
EU case law, once binding, could still be persuasive under the Act, where a point made is on topic as regards the Act. What support does that view have? Well we have heard from, certainly one of the leading commentators, one of the very leading commentators, who is of the same view and so, it's, again, I think time will tell, once we start seeing challenges coming through following procurements under the Act or in response to matters arising under the Act whether or not the old case law is involved but it might be, and so, again, it's another one to watch.
So, those were my main topics. Is there any other news that we want to talk about? Well, yes, there are a couple of bits to any of you who are familiar with, or use, the Crown Commercial Service Model Services contracts, those have now been updated in the light of procurement Act and we've included here some links to all three of them.
You'll be pleased to know, if you haven't delved into them already that they, all of them, come complete with guidance, and the guidance is there for you to look at and you can access the guidance, alongside the contracts via these same links.
Okay consultation on further reform is the other, other bit of other news so just when we thought that everything was bedding down, and we could just, you know, look at the Act that we've got, and, and go to bed on it, well, we can't, because further reform is being talked about, there is a consultation. Well, there has been a consultation. It ended on the 5th of September, and I noticed this week that the competition and markets authority have just worth reading, I think, really in relation to how public procurement can actually be a tool to shape markets, which is an interesting and valid point, I think, so do have a read of that if you would like, but the possible further reforms which the consultation covered, or invited views on were really built around these three policy goals.
First of all, supporting, giving further support to SMEs and social enterprises, VCSEs in terms of whether there ought to be greater targets for increasing procurement spend with those types of organizations, prompt payment, and also, around people-focused services the first area.
Secondly, supporting national capability, in particular whether there ought to be a standard assessment undertaken by contracting authorities on whether, for example, a particular requirement could be delivered in-house, should be delivered in-house, or should instead be outsourced and also, a priority around a policy goal of surrounding, of supporting good quality local jobs and skills.
So, 3 fairly laudable, policy goals, I think, in there.
What I did notice, though, was actually no mention of that Bill, the British Goods and Services Bill, the one I talked about earlier, in it, which seems a little odd, but anyway I understand that the second reading of that bill is due on the 31st of October 2025, so in not many weeks' times.
If you'd like to view the passage of that bill, then there's a link to, the House of Commons website there, and you can see how it's going.
And finally, I thought I'd just leave you with this. How would William Shakespeare have written about the procurement Act. Well, you'll be pleased to know that I'm not going to recite it now, I'll leave you to look at it, have a chuckle at it when you get the slides. I can't, I'm afraid, take the credit for any of this, whoever it was, or whatever it was that wrote this I think it's actually quite good. So, I do recommend it to you and, of course, for further help, you know where we are.
If you are not already aware of or haven't already seen or tucked into our Procurement Act toolkit then, obviously, do check it out. The link is right there and if you, alternatively have a question which you'd like to take up with me or one of our team.
Links to our team members are in the toolkit. And a link to my email address is right there.
In terms of questions, by the way, the useful bits and bobs are here at the end of the slide. This is the visual on the Procurement Act notices. and this is a visual, really just a guide... offering you guidance on what needs to be published as part of that transparency, in relation to contract management phase of the procurement lifecycle.
In this webinar Christopher Brennan takes a look at how the Procurement Act 2023 has been bedding in since its go-live on 24 February this year. How have buyers found it? What's the noise from suppliers? Is public procurement any less complex and time-consuming in the new world than before the Act? Is there more visibility of upcoming opportunities for suppliers? What trends are we seeing?
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