The High Court has ruled that retrospective changes to the LGPS exit credits regime were lawful – and gave some helpful guidance around the new discretion to pay an exit credit.
This ebriefing is the last in our series on the Government’s Green Paper: Transforming public procurement. It considers the Government’s proposals to simplify the procurement procedures, as set out in Chapter 3 of the Green Paper entitled “Using the right procurement procedures”.
The proposals offer some welcome simplification of the available procedures, seeking to move much closer to the approach set out in the GPA. The proposal is to reduce the available procedures to just three:
- the open procedure (as at present);
- a new “competitive flexible procedure” which will be similar to the current light-touch regime procedure; and
- the negotiated procedure without advertisement (rebadged as the “limited tendering procedure”).
Availability of the “competitive flexible procedure”
A key question that the Green Paper doesn’t answer is whether the competitive flexible procedure is to be available for all procurements or whether, like the competitive procedure with negotiation and competitive dialogue at the moment, it is to be available only in limited circumstances.
If this procedure is not to be freely available in all procurements, then we think it is essential that the restricted procedure is retained. If it is going to be available for all procurements, then there is no need to retain the restricted procedure, since the competitive flexible procedure has enough flexibility within it to be run as a restricted procedure.
The Green Paper makes great play around “innovation”. However, there is a difference between innovation in procurement methods and processes and innovation in what is being procured.
Innovation, in what is to be procured is to be encouraged, but innovation in procurement methods could lead to inconsistency and remove the benefits of standardisation that the Green Paper is seeking to encourage.
One helpful innovation would be to re-introduce the procurement procedure for public housing scheme works contracts. This enables the procurement of a “team” for a project that generally requires a high level of collaboration, and reflects a procurement approach being promoted by the Government in its Construction Playbook.
Light Touch Regime
The Green Paper suggested abolishing the Light Touch Regime. This was on the basis that it is no longer needed due to the introduction of the competitive flexible procedure.
The accession to the GPA allows restoration of the distinction between Part A and Part B services that existed under the Public Contracts Regulations 2006, with the residual category being Part B services. For procurements of Part B services that are not covered by the EU-UK Trade and Co-operation Agreement (TCA) contracting authorities could then be relieved of the need to submit a contract notice to Find a Tender Service (FaTS). This would mean that they would just need to submit a contract award notice and would have significant flexibility to choose the most appropriate provider for these services.
Under the TCA, the Government has taken advantage of the higher tendering threshold for “Light Touch Regime services” to which GPA coverage is extended. We recommended that the Government should make use of this flexibility and set a higher tendering threshold for these services, as it is permitted to do. The competitive flexible procedure could then be used for procurements with a value above this threshold.
What happens next
The consultation has now closed. We have included these comments in our response to the consultation paper, which we submitted on 10 March 2021. We are now awaiting with interest the Government’s detailed proposals following the consultation.
For more information
For further information in relation to any of the above, please contact your relevant ACS contact or Andrew Millross.
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