The post-Brexit amendment to Public Procurement Law: transformative or unchanged provisions?

Dr Miriam Mbah, who joined the OU as a Lecturer in Law in September 2020, has both a LLM and a PhD in Public Procurement Law.

The UK Government published a Green Paper on Transforming public procurement in December 2020. This Green Paper, which proposes to amend procurement law in the UK, was prepared in anticipation of the UK’s departure from the European Union (31 December 2020). In addition to the publication of the procurement Green Paper, a public consultation was issued, inviting comments on the proposal. In this piece, I share my response to two crucial proposals in the Green Paper. This is part of my 10-page response to the public consultation, which closes on Wednesday 10 March, below.

Historically, the regulation of public procurement from 1973 originated from the EU procurement directives and the UK obligation to transpose the directives into national law. Thus, when the end of Brexit was in sight, it was fitting to propose changes to what was the EU approach to procurement regulation. The post-Brexit changes would enable the UK to deliver value for money and meet national objectives that should not conflict with the Government’s obligations to the World Trade Organization Government Procurement Agreement and the UK/EU Trade and Cooperation Agreement.

Agreeable transformative proposals

The 82-page Green Paper proposed changes that aim to simplify procurement processes, maximise value for money, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery. Divided into eight chapters, the Green Paper tackles issues such as the principles underlining procurement regulation (chapter 1), the regulatory frameworks (chapter 2), procurement procedures (chapter 3), contract award process (chapter 4), commercial purchasing tools (chapter 5), ensuring open and transparent contracting (chapter 6), procurement challenges and remedies (chapter 7) and contract management (chapter 8).

Overall, I welcome the intention of ‘transforming’ the current procurement regulations to a regime that provides flexibility, equality and is progressive with societal sustainable objectives and technology. The Green Paper represents crucial changes that will advance these objectives and modernise public procurement outside the European Union direction. For example, the proposal to create a single uniformed law will bring together four separate public procurement laws in the UK – the Public Contracts Regulations; Utilities Contracts Regulations; Concession Contracts Regulations; and Defence and Security Public Contracts Regulations. This proposal will provide legal certainty by avoiding duplication of provisions and reduce confusion in understanding and applying the procurement rules.

Other transformative proposals include reducing procurement procedures available to buyers from seven similar choices under the current Public Contracts Regulation (PCR) to three procedures. While the reduction will lead to a simplified procurement process, the proposal’s information is not enough to determine the efficacy of the proposed procedures.

Extreme urgency and crisis, two peas in a pod?

The Green Paper’s ambitious objectives were initially approached with enthusiasm and great interest as the proposed reformation represents a divergence from the EU approach. My enthusiasm was met with concerns as I read the proposals from chapter to chapter because some proposals are vague, unnecessary, repetitive, lacking transparency, confusing and not fit to be included in the proposed new regulation.

The Green Paper includes several provisions that are similar to current provisions in the PCR without any new additions or transformative changes to the proposal. For example, in addition to the existing Regulation 32 that enables buyers to disregard the procurement rules in extreme urgency cases brought about by unforeseeable events (for example, Covid-19), para 78-80 of the Green Paper proposes to include a new ground of ‘crisis’ procurement.

There are no significant differences between the existing extreme urgency ground and the proposed crisis ground. Arguably, the crisis ground spells out what the extreme urgency ground is about. For example, extreme urgency is widely drafted to include ‘unforeseeable’ events. In contrast, the proposed crisis ground covers harmful events in everyday life, measures which will protect public morals, safety and human, animal or plant health. Instead of implementing two grounds that mean and achieve the same objectives, the Government should amend Regulation 32 to include these criteria.

Furthermore, the proposed crisis ground does not address crucial issues highlighted during the Covid-19 extreme urgency procurement. For example, lack of transparency as supported in the recent High Court ruling was not effectively addressed, leaving rooms for future poor emergency procurements.

Most economically advantageous tender and most advantageous tender, what’s the difference?

Additionally, chapter 4 of the Green Paper proposes to change the criteria for awarding public contracts from the most economically advantageous tender (MEAT) under the current Regulation 67 to the most advantageous tender (MAT) in para 99-102. So what is MEAT and MAT?

For public buyers to obtain value for money when awarding contracts to suppliers, they should evaluate submitted tenders to determine the price and quality that meets their needs. Under Regulation 67 MEAT criteria, buyers can consider matters such as technical merit, functional characteristics, environmental and social characteristics, after-sales service, technical assistance, delivery date and delivery period or period of completion. In contrast to the proposed MAT criteria, the Government states that buyers ‘can take a broader view of what can be included … in assessing value for money including social value as part of the quality assessment’. From the analysis of both criteria, it is unclear what additional benefit the MAT criteria have over the existing MEAT criteria. Again, these two issues are effectively two peas in a pod as social value explicitly included in Regulation 67.

These examples of unchanged and unnecessary proposals are the tip of the iceberg. The Government should carefully study the consultation responses before implementing any of their proposals to the new public procurement law.