Submerged in detail – Part 2 consultation on notices under the draft Procurement Act

Excessive detail

The level of detail required by the draft Regulations in each notice is significant. This could lead to some notices being hundreds of pages long, making it difficult for potential tenderers to be able to see the wood for the trees. Whilst we understand the desire for transparency, we have grave concerns over requiring this level of detail. For many procurements, all that is needed in the notice is sufficient information for suppliers and contractors to decide whether they are interested in tendering. This level of detail required also risks tying contracting authorities in knots. If minor errors are discovered in the information submitted then contracting authorities may find that they need to discontinue and recommence procurements for fear of procurement challenges.

Move the details to the procurement documents

We are assuming that future Regulations will set out the documents that must be provided alongside a tender notice. Presumably, these will be similar to the documents a contracting authority must currently provide alongside an FTS notice under regulation 53(1) of The Public Contracts Regulations 2015. Rather than requiring excessive detail in the notices themselves, it would be preferable for the Regulations to provide that this information can be published in the procurement and contract documents that are published alongside the notice.

Duplication

There is substantial duplication of information provided in ‘earlier notices’ in ‘later notices’. This is unnecessary. If each notice includes a reference to previous notices relating to the same procurement the database can include a hyperlink to those notices. This will save cluttering up the ‘later’ notices with information that has been provided already in earlier notices.

Supplier information

A similar approach could be taken to supplier information in contract award notices etc. Rather than each notice including information about specific suppliers that is duplicated on the central platform, the notice could just include the name of the supplier and their unique identifiers. Further information about that supplier could then be accessed from the supplier’s own profile rather than having to be included in each notice.

Administrative burden

The work required for contracting authorities to collate the required information and, more importantly, ensure it is correct, is significant. At a time of tight controls over public expenditure and with many local authorities issuing section 114 notices, this is yet another burden on hard-pressed contracting authorities.

Summary

In summary, we commented that the proposed notices regime would create a very heavy burden for contracting authorities in their procurements. It is far more bureaucratic and restrictive for contracting authorities than the EU regime which it replaces.

We fear that the regulations being consulted upon have been rushed and are so far away from being workable in practice that another consultation will surely be required. Substantial changes are needed to the approach being proposed to avoid contracting authorities being subjected to an ossifying paper chase of notices.

We will have to wait to see whether the Cabinet Office listens to our concerns and significantly slims down the level of detail that the regulations will require for the new notices regime.

Please contact Andrew Millross

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