In its Green Paper on transforming public procurement, the Government hailed the impending procurement reforms as an opportunity to depart from the existing procurement regime (often considered bureaucratic and unwieldy) and to introduce greater flexibility into the procurement process.
In its Green Paper on transforming public procurement, the Government hailed the impending procurement reforms as an opportunity to depart from the existing procurement regime (often considered bureaucratic and unwieldy) and to introduce greater flexibility into the procurement process.
This approach to flexibility has, to a certain extent, been carried through into the drafting of the Procurement Bill via the new Competitive Flexible Procedure. Under this new procedure, contracting authorities will largely be free to structure their processes however they see fit, subject to compliance with the new principles of public procurement set out in the Bill. Additionally, the Procurement Bill sets out certain characteristics which will need to be adhered to in the design of a competitive flexible procedure, including:
- the process must be a proportionate means to award the contract (considering nature, complexity and cost);
- the process may limit numbers of participants (generally or per round);
- the process may allow for award criteria to be refined; and
- bidders who did not participate in (or who were excluded from) an earlier round in the process must be prohibited from participation.
Further guidance is anticipated on the competitive flexible procedure (including example procedures), but we anticipate that this may be of particular interest to contracting authorities who are keen to adopt a lean negotiated process.
But with increased flexibility, comes an enhanced transparency regime and contracting authorities will now be required to make available more detailed information about their procurements, as well as certain details around the management of their public contracts.
Under the current rules, the absolute minimum in terms of what a contracting authority must publish to Find a Tender Service is two notices – a Contract Notice and a Contract Award Notice. Under the Procurement Bill, there are a greater number of mandatory notices (including a contract termination notice – to be published whenever a public contract comes to an end – either by natural expiry of the contract or by its early termination), as well as several voluntary notices relating to the procurement process.
Planning and Pipeline Notice – Compulsory for contracting authorities who consider that they will pay more than £100m under relevant contracts in the coming financial year
Planned Procurement Notice – Voluntary – equivalent of a PIN (although not used as a means to call for competition)
Preliminary Market Engagement Notice – Voluntary – sets out intention to carry out pre-market engagement
Tender Notice – Compulsory where a contracting authority intends to award a public contract under clause 18
Contract Award Notice – Compulsory before entering into a public contract – sets out intention to enter into contract
Contract Details Notice – Compulsory – sets out that a contract has been entered into
Contract Change Notice – Compulsory – must publish before modifying an existing public contract (except in prescribed circumstances)
Contract Termination Notice – Compulsory – must publish within 30 days of termination (including termination by a party, discharge, expiry, recission and set aside by court order)
Dynamic Market Notices – Compulsory where a dynamic market is to be established
Transparency Notice – Compulsory where there is a direct award under clause 40 or clause 42
Payments Compliance Notices – Compulsory – must publish payment compliance information every 6 months in respect of prescribed values, and confirm compliance with prompt payment provisions
Below Threshold Tender Notice – Compulsory where a contracting authority intends to advertise for the purpose of inviting tenders for a below threshold procurement
