For our first ThinkHouse Procurement Masterclass, Chris Brennan discusses social value in procurement. How exactly should social value be promoted through public procurement? How should it be evaluated? Should it feature in every procurement process? Are there traps for the unwary to sleepwalk into?
He also reports on the current status of the proposed reforms to public procurement law in the UK.
Transcript
Susannah Fink: Welcome to everyone and thank you for joining us this morning. I am Susannah Fink. I am a Legal Director in the Commercial Litigation team here at Gowling WLG, and I act on public procurement challenges, acting both for claimants and for defendants.
This is the first webinar in our new series of ThinkHouse Public Procurement Masterclasses. We are going to be running these webinars quarterly covering a different leader topic in each session, as well as reporting on the current status of the proposed reforms to public procurement in the UK as they progress.
So today's topic is social value and I am going to be joined by Chris Brennan, a Legal Director who leads our Public Procurement Practice area, and he is going to run through some key aspects of social value to consider both from the authority side and on behalf of bidders.
Before I hand over to Chris I have just a couple of quick housekeeping points that I would like to run through. Firstly, please do feel free to use the Q&A box if you have any questions throughout the webinar. Chris and I will then pick those questions up at the end of the webinar but I am conscious we have quite a lot to get through today so, if for any reason, we do not manage to answer your particular question then we will get back to you afterwards by way of email.
The webinar is being recorded and it will be circulated in a few days time along with a copy of the slides you can either choose to watch it again or if you wish to share it with any colleagues who have unfortunately not been able to join us today then please feel free to do so.
At the end of the webinar there will be a short feedback form on your screen and we would appreciate it very much if you could just please take a few minutes to complete it. Both to let us know what you though of today's session and also to highlight any topics that maybe you would like to be covered in the forthcoming masterclasses.
So without any further ado I will hand you over to Chris.
Chris Brennan: Thanks very much Susannah. Great to see you all here. It is lovely that you have been able to join us. This webinar will probably go quite quickly because we have a lot to get through so if you do not manage to scribble down notes do not worry, it will be recorded and of course you will get that after the event. But do please feel free to ask us questions.
So, social value in public procurement is the topic and we are going to be focussing primarily on the position in England, because obviously after all we are in England and the situation or position in the other administrations UK is slightly different in some areas. So, for the sake of argument today we will be talking about law and policy as it applies in England.
So, what is the law on social value in public procurement? Where do we find it?
Well, for a start it is not just law we are talking about. There is some law but there is also quite a lot of overlying policy that contracting authorities, large and small, need to be aware of. And here we are going to be gathering it all together and trying to tackle as much of it as we can, just to give you an overview of what is involved and where it all is.
So, I suppose starting from the most recent piece of policy, if you like. Procurement policy note 0521 is the national procurement policy statement. So that is policy not law. It is the piece of procurement policy dealing with, amongst other things, social value which is there at the moment. But that is just the most recent procurement policy statement which includes social value. We also have a previous one, procurement policy note 06 of 2020 on taking account of social value in the award of central government contracts. So unlike 0521, 0620 is one that is a PPN which deals specifically with social value but also specifically for central government procurement, for the award of central government contracts.
So those are two pieces of relatively recent procurement policy on, or including, social value. What then is the law? Where is the law on social value as it stands?
Well, it is really scattered across the statute book. We have the Modern Slavery Act 2015, section 54, which requires suppliers with a turnover, I think, of £36 million or above to have a modern slavery statement which in procurement they are going to have to evidence. We have the key plank of public procurement law in this country, the Public Contracts Regulations 2015, in which social value is promoted directly and indirectly via a series of regulations in various places within the PCRs and we will explore those a little bit more later.
Going back in time we have the Public Services Social Value Act 2012, and that is a piece of legislation requiring procurer, the commissioners of public services and specifically public services, to consider at the pre-procurement stage how in that procurement, or through that procurement, they can secure the wider social and economic and environmental benefits wellbeing in their respective geographical area.
And then we also have the public sector equality duty set out in section 149 of the Equality Act 2012 obliging public bodies, including, of course, in procurement as it happens, to promote equality across all types of individuals. And of course that duty extends into public procurement as a general thing.
So, starting from the top then, I suppose, the National Procurement Policy Statement. A relatively recent procurement policy note but, again, very crucially here, it is not actually law it is policy and it provides, among other things, content dealing with social value and helpfully, actually, it defines social value. It identifies it citing the Treasury's green book as the wider financial and non-financial impacts of projects and programmes including the wellbeing of individuals and communities, social capital and the environment. So if we want a potted summary of what social value is intended to mean, that is it.
Now, the NPPS applies to all contracting authorities but, interestingly, contracting authorities in the NPPS are not defined by reference to the Public Contracts Regulations as one might expect. They are actually defined as being contracted authorities within the scope of the Small Business Enterprise and Employment Act 2015 which, incidentally, and I will pick this point up again shortly, also happens to contain a legislation making power. So, we will park that for a moment.
So why then is there this difference in where the definition comes from?
Well, the definition of "contracting authority" in the Small Business Enterprise and Employment Act 2015 is very similar to that of the PCR 2015. But it actually goes slightly further because it imposes duties on contracting authorities in respect of the exercise of functions relating to procurement. And I think it is to capture that that the NPPS refers to contracting authorities as scope within the SBEEA.
So, functions relating to procurement can include preparations for procurement, the pre-procurement planning stages as well as after the procurement, so the contract management stages. And those strands are, therefore, pulled through into the NPPS. Now, the NPPS does not detract from an authority's existing obligations under the PCR. Far from it, the two are intended to run together and the PCR is, of course, law, and the NPPS is, at the moment, policy. But the intention in the transforming public procurement green paper, so the intention moving forward into the future shape of public procurement law, the future legislation trailed in the transforming public procurement green paper, is going to be to implement a statutory duty to have regard to the National Procurement Policy Statement and that statutory duty will be imposed when parliamentary time allows.
Now, what this will mean is that the National Procurement Policy Statement, which incidentally is likely to be revised and updated at or possibly before the new Public Procurement law comes into effect, is that the NPPS will be placed on the footing of statutory guidance. So unlike at present it will be placed on the footing of statutory guidance. Legislation could be introduced under the Small Business Enterprise and Employment Act, remember I talked about the fact that the SBEEA has a legislation making power in it, or it could be brought in under the new procurement reform bill, i.e. the green paper bill. We do not yet know which of those it will be and which of those it is might have an impact on timings. So we could see a statutory duty to have regard to the NPPS coming in sooner or it could be only when the procurement reform bill is actually implemented into law.
So, as and when either of those things happen, social value promoted through the NPPS will be placed on a firmer and a statutory footing because the guidance in the NPPS will then have legal status to it.
Now, the NPPS essentially requires those exercising procurement functions to have regard to national priorities around social value in addition to any local ones, it also says other things. And it says that procurement should be leveraged, and that is the word the NPPS uses, to support these national priorities. Now, the Minister from the Cabinet Office can change the NPPS from time to time in order to reflect evolving national priorities and perhaps we are all at this point in time thinking of levelling up and what that might do to the evolution of the NPPS and/or other procurement policy going forward.
But that itself raises one or two questions around the national priorities and whether they fit. So, of course, it is all very well to have national priorities, but I wonder whether there might, in reality, be a friction with ongoing obligations to which the UK is now subject under the World Trade Organisation Government Procurement Agreement which, in fact, places statutory duties on the contractual authorities now to treat GPA suppliers, or suppliers from GPA signatory states including the EU, to treat them no less favourably than national suppliers. So, might there be a friction there if the social value agenda ends up promoting national priorities, or bringing them right to the fore.
So, anyway, regard has to be had to national priorities where it is relevant to the subject matter of the contract and where it is proportionate to do so alongside any additional local priorities which a contracting authority, in a particular locality, might have.
So we have national priorities, we have local priorities which, of course, there is already a statutory duty to have regard to under the Public Services Social Value Act, and there is also the GPA dimension. And so perhaps triangulating all of those might, in some situations, lead to quite a bit of tricky thinking for contracting authorities who are writing that middle spot. It is also arguable, I think, that the NPPS is relevant to every contract, even those which are sub-threshold, and that could perhaps create quite a burden for contracting authorities, even where they are procuring sub-threshold contracts because they might find that they ought to be having regard to social value objectives in the NPPS.
So what are the national social value centric priority outcomes in the NPPS?
Well, they are on this slide. There are three of them, they sub-divide each into three sub-categories. You can see what they are here: new business, creating new businesses, tackling climate change and reducing waste; and improving supplier diversity and resilience. And so regard has to be had, it says, the NPPS to these various strands of priorities.
So how then do we take the NPPS and feed it through actively, I think, into our public procurement?
Well, there are some pointers, I think, which come from the NPPS and which it is useful and important, I think, to have regard to and to make sure that we action.
First of all, authorities need to ensure that there is a clear link starting really on day one and, indeed, before day one of a procurement. Starting, in fact, right from the point where strategies and business cases, which will then go through to form procurements, are actually first envisaged. The NPPS mentions that commercial experts should be involved in the planning and devising of business cases right from the outset, including then through to the setting of procurement specifications and then, one in the procurement, in the assessment of quality when awarding contracts. So, having regard to social value means, fundamentally, that procurement should not just be about getting the lowest price. It rarely is anyway but, with social value considerations to be brought on board when setting quality, then clearly it will not just be about lowest price.
Ensuring authorities do not go too far is also important. So authorities should not be gold plating contracts over enthusiastically, from a social value perspective, by bedding into the additional requirements which could be met more easily and for better value outside the contract compliance process. And, again, I am more or less quoting from the NNPS here, particularly where legislation has already determined that such provisions do not apply. So, for example, authorities are discouraged from imposing public sector equality duty obligations on the private sector contractor. So, being careful to maintain the distinction really between what the public sector side, the buyer side, ought to be doing and not trying to shuffle off or overly shuffle off obligations onto the private section, is an example, and there are doubtless more.
Having the right policies and procedures in place to manage the key stages of procurement delivery, in turn helping drive and deliver social value, is again a key strand promoted through the NPPS. So, what does this include?
Well, it includes publishing procurement pipelines; assessing market health and capability to deliver social value; producing and thinking about and delivering model assessments; how best is social value to be delivered through our contract? Producing models of what a service ought to cost; maybe where necessary and appropriate carrying out pilots; setting appropriate KPIs; allocating a risk in appropriate ways; having suitable pricing structures and payment mechanisms; during the selection stage of procurements assessing economic and financial standing in an appropriate way and technical ability as well. And also resolution planning and, by that, the NPPS, I think, essentially means knowing how or providing in the contract what should happen, for example, if supplier distress or insolvency is faced.
Taking measures again to identify and mitigate modern slavery risks in authorities contracts, including down the supply chain, will be an important and increasingly important strand going forward and, again the NPPS puts that firmly on the radar.
It also encourages joint working and collaborative working between contracting authorities including, again, where appropriate, through the use of shared services structures/shared services models and also, again, where appropriate, professional buying organisations. So, central purchasing organisations and such like which might be better geared, or best geared, to helping in the delivery of the social value objective.
So, having explored now the NPPS, how does the NPPS square with the law. So, you might be thinking well, Chris, you have talked about policy but to what extent is implementing the NPPS on social value actually a legal requirement?
Well, that is a good question, in fact. Once the NPPS, or the statutory duty to have regard to the NPPS, has been implement and, remember, it might not be the current NPPS. That might not happen until the NPPS has been updated. After that point this question will be easier to answer because there will be a specific statutory duty to have regard to the NPPS and what will that duty require contracting authorities actually to do?
Well, "have regard to" means they are going to have to think about it. They are at least going to have to think about it. So they cannot not think about it. They are going to have to understand it. Well, understanding it will be clearly important, so they will need to know what it requires of them. And, thirdly, contracting authorities will need a good reason to part from it. So statutory duty to have regard will involve having to do all of those three things.
So, that is for after the statutory duty has been implemented. But what is the status of the NPPS now?
Well, arguably it is a relevant consideration and so, in theory I suppose, an authority could be susceptible to a public law challenge for simply ignoring it. But then also, perhaps drilling down, needing to make sure that social value has an appropriate wait, or carries an appropriate weighting, in the procurement and that might be a very small waiting or it might be a higher waiting. But whatever the weighting it is a matter for the authority to decide what weight social value should carry. But it is, again, probably a Wednesbury reasonableness consideration. So, in other words, is it reasonable that social value should be factored in given an appropriate or a particular weighting and evaluated in a particular way in this particular procurement. So, again, that is probably the law on the NPPS now. Just a reminder, I suppose, the Public Services Social Value Act is already law. I will talk about that in a moment, but for now just talking about the NPPS.
Is anyone really likely to challenge a contracting authority right now for a failure to give due weight to the National Procurement Policy Statement in PPN 0520?
My view is possibly not. If that were to happen would it be a High Court claim? Would it be a PCR? Or a JR claim, a public law based claim? I suspect it will be the latter. I do not think there is really any means by which the NPPS can be challenged through a claim under the Public Contracts Regulations. However, we ought to just point out that one test for the amenability of a particular matter to a JR challenge based on public law/Wednesbury reasonableness and so forth, is sufficient statutory underpinning.
Now, it is perhaps doubtful whether the NPPS, where it sits right now and prior to it having been given the statutory force as previously described, actually amounts to a sufficient statutory underpinning. So, is a legal challenge based on failure to have regard or insufficient regard to NPPS now, today, actually going to succeed even as a JR matter. It is debateable, I think, it is questionable and also, of course, there is a limitation period. Limitation periods in procurement and, indeed, in JR where the matter concerns proper procurement, are short, it is 30 days from date of knowledge. So there is always, perhaps, the question of whether a particular limitation period might have been and gone by the time anyone is minded to complain about something like this.
So, before we talk about the Social Value Act, a quick word on the previous Procurement Policy Note 0620, the Social Value Model.
Taking account of social value in the award of central government contracts and this PPN, unlike the NPPS, is specifically about social value. It applies technically to central government contracting authorities but, as with any PPN, even where in scope organisations are only central government bodies, it is surely good practice for any contracting authority to have a look at them and implement them appropriately where it is relevant and proportionate to the subject matter of the contract to do so.
What does PPN 620 require central government to do?
Well, it requires them to evaluate specifically social value in in scope procurements, so not just public services contracts as per the Social Value Act, but to all public contracts and the in scope procurements are, in fact, those covered by the Public Contracts Regulations 2015. So fairly straightforward there.
So, under PPN 620 social value is to be explicitly evaluated in all in scope central government procurement. But only where social value requirements relate and are proportionate to the subject matter of the contract. So, if we look at that the other way on, there is no necessarily any need to implement the Social Value Model where to do so would not be related and proportionate to the subject matter of the contract. It is just that perhaps a lot of the time, especially nowadays, maybe it would.
Now, application of the model is mandatory, again where it is relevant and proportionate, but commercial teams do retain flexibility in deciding which social value outcomes ought to be applied to ensure relevance and proportionality. Now, PPN 620 is quite a big set of documentation. There is a lot in it. There is the Social Value Model, there is guidance on using it and there is a quick reference guide. It contains a lot of templates, guidance, model award criteria and so on and so forth. It might be a question of picking and choosing rather than implementing everything lock stock and barrel because of the requirement for relevance and proportionality.
Now, importantly, the Social Value Model requires a minimum weighting of 10% to ensure that social value is a differentiating factor in bid evaluations. Now, there is on little exception to that which is that where an authority has done pre-procurement marketing engagement and has found a particular market to be not particularly mature, it is then possible, perhaps in the market where suppliers are may be not sufficiently geared up to really deliver on social value objectives, it can be sufficient if social value only counts for at least 10% of the quality element of the weighting rather than 10% of the entire marks.
Any benefit identified as social value has to be over and above the core deliverables or deliverable of the contract. However, what exactly should be evaluation within that minimum 10%?
Well, there are five key priority areas, key policy outcomes within 620 and these are them. And, again, a bit like the NPPS there are headline outcomes and they sub-divided down here. Very helpfully the PPN, the Social Value Model should I say, sets out a number of resources. There are model evaluation questions, model response guidance, reporting matrix and an award criteria and sub-criteria. So there is plenty of material to choose from in order to promote social value as encouraged in social government procurement and, as I said, other contracting authorities are perfectly free to take a look at it and use those criteria or pick from those criteria and resources as appropriate subject, of course, to relevance and proportionality.
So, the third key area, the Public Services Social Value Act, remember this is law rather than policy, and it has been enforced since 2013.
So, it is relevant, rather it applies, where a relevant authority proposes to procure, or make arrangements for procuring, the provision of services or the provision of services together with the purchase or hire of goods or the carrying out of works by doing either of these things.
Entering into a public services contract that is not a contract based on a framework agreement. So, the act applies at the pre-procurement stage of actual public services contracts or framework agreements which, or contracts from which, will comprise primarily, or predominately, public services contracts but does not have to be considered at the stage prior to awarding contracts based on existing framework agreements.
Secondly, concluding a framework agreement as regards which public services contracts are likely to constitute the greater part by value of the contracts based on the agreement. So even in the case of the framework where there might be some services contracts, some work contracts or some goods contracts, supply contracts, where services are likely to constitute the greater part, it is in the procurement of those frameworks that the Social Value Act is engaged at the pre-procurement stage. And for all such in scope procurements the authority has to consider, first of all, how what it proposes to procure might improve the economic social and environmental wellbeing of the relevant area. So, it is not strictly just about social, it is also about economic and environmental wellbeing of the relevant area and, secondly, how, in conducting the process of procurement, it might act with a view to securing that improvement asterisk.
What is the asterisk?
Well, again, there is a familiar theme here. When doing that, when conducting the procurement and, indeed, when thinking about procurement, it will be necessary to consider only matters that are relevant to what is proposed to be procured and, in doing so, all authorities have to consider the extent to which it is proportionate in all the circumstances to take those matters into account. So relevance and proportionality the familiar theme here yet again.
In addition, the PSSVA asks you to consult as to the matters or, actually, to consider whether you should consult as an authority in relation to the matters that have to be considered under section 113. So, a duty at least to consider a consultation prior to procurement and in section 8 it is worth noting that there is actually a get out card, but a fairly tightly prescribed one. Now there is a mechanism where the duty can be disregarded where it is impractical due to an urgent need to arrange the procurement. So, again, perhaps during the pandemic we have seen a lot of this but the disregard does not apply where the urgency is down to an undue delay on the part of the authority, and that is section 9. So some key strands there being pulled out of the Social Value Act, the PPSVA.
So, are there any traps for authorities to be aware of?
Well, first of all in most cases where it applies the Social Value Model should not be amended. So, you can pick and choose if you are a central government authority, you can pick and choose a little bit for the sake of relevance and proportionality, but should not go amending the detail really of what is there. It is there for a reason. Social value considerations in any tender award criteria must, just as with any other award criteria used in public procurement, be linked to the subject matter of the contract and that has long been the case. It has been the case for as long as I have been in practice which is well over 20 years. So very, very familiar there.
Social value criteria have to be non-discriminatory and authorities have to ensure transparency and equal treatment of all bidders so it does not do away with any of that. The green paper response, which I will talk about in a moment, will also preserve the proportionality requirement to an extent. So the complexity of procurement procedures has to be proportionate to the subject matter and nothing should end up overwhelming the sorts of bidders who might otherwise find it difficult to bid. For example, perhaps in particular small and medium sized enterprises.
So, do plan social value into procurement from the word go. Weave it in as appropriate into contract planning stage, think about the NPPS; the scope of the procurement, think about the NPPS 620 and the PSSVA; the outputs, think about all of those; KPIs; selection criteria; award criteria and, of course, managing the contract, because the policy certainly is very clear that the social value agenda should apply right through the procurement life cycle. Including through the contract management stages as well.
Incidentally, I should just mention, that PPN 620 of the Social Value Model is predominately about the award stage of the contract. So you will see if you look at it that it includes lots of information on the awards stage, model award criteria, but that is really about award criteria rather than selection criteria. The focus is on that. The exception there is actually the dynamic purchasing systems where there is some scope to look at social value as a pre-condition to allowing suppliers onto a dynamic purchasing system. Do not forget, also, PCR Regulation 18, that is the famous provision of the PCRs that says the authority cannot design a procurement intending artificially to narrow competition, that is with the intention of unduly favouring or disadvantaging certain suppliers, so there might be a linkage there with the social value. So, do not, perhaps, be tempted to skew a procurement overly in favour of disadvantaged groups or SMEs, for example. But also be aware of existing mechanisms which already give plenty of flexibility to factor social value into any procurement in one form or another.
So, for example, environmental characteristics can be drawn into technical specifications under Regulation 42 of the PCR. Social environmental criteria can be taken into account at the awards stage, that is PCR Regulation 67.2, and perhaps without that we would not be able to factor social value in to the awards stage at all. But we can, thanks to the fact that 67.2 allows us to.
Thinking of dividing contracts into lots in order to make procurement more accessible, especially for SMEs, that is Regulation 46. Reserving certain types of, what is called, reserved contracts which one can do in particular circumstances under Regulation 77. Designing award criteria in light touch regime procurements so as to favour service users to promote social value specifically under Regulation 76. Sub-threshold contracts, again, PPN 1120 involves or gives central government authorities the ability to reserve certain sub-threshold contracts to particular types of supplier, for example, SMEs. Carbon reduction in central government procurement is PPN 0621, it is not 0620 it is 0621, and, again, that agenda can be promoted through procurement thanks to PPN 0621 and we also have the subtle nod to public procurement, in fact, an encouragement to take social value into account and to evaluate it at award stage in both the construction playbook and the sourcing playbook. And in case you are not aware of what those are they are almost best practice guides in how to run certain types of public procurement.
So, in all of those instruments there is promotion and the ability and encouragement to think about social value and to work that into public procurement and when, in fact, you receive these slides you will see that there are links in this slide to all of those resources directly, so do have a look at them.
And, finally, we are all familiar now, of course, with the levelling up agenda. As we see it that may well find its way, as 2022 progresses, into more and more PPNs. There is already a nod incidentally to promoting social value through public procurement in the levelling up UK white paper and just for completeness I have also included a link to that in this slide.
So that was all I was planning to say on social value. It is a big topic. I hope I have been able to draw it together to at least an extent for you.
The rest of what I am going to say now is just a quick update on the transforming public procurement green paper. Since we did our last ThinkHouse webinar there have been some updates. We have a response now to the government's consultation which, as you will probably recall, closed in March 2021. The government have now responded to that consultation which drew in excess of 600 responses and we now know a little bit more about timing and we know a little bit more about what has made it through to the next stage and what has not from the original green paper.
So, as regards timing. Well, draft legislation will be brought forward when parliamentary timing allows. A bill is expected early in 2022, I would say probably before the end of June, that is just a guess on my part. Royal assent might come late in 2022, later this year.
There is, however, going to be not just primary legislation but probably also some secondary legislation forming eventually part of the new public procurement regime. So, we will have a Procurement Reform Act and then we also have secondary legislation to implement certain areas. Notably, I think, the policy priorities including the NPPS again whether or not the statutory duty to have regard to the NPPS is a piece of secondary legislation coming out of the Procurement Reform Bill or whether it comes out of the Small Business Enterprise and Employment Act remains to be seen. But one way or another there is likely to be secondary legislation with regard to how to enter the NPPS and placing it on a statutory footing. And also, potentially, regulations around achieving net zero and firming up that agenda as well. That is implementing a statutory duty there to achieving that target.
Implementation is expected in late 2023 at the earliest and the reason for that is that there are a number of steps and stages that have to be gone through prior to that being able to happen. So, obviously, the bill, the Royal assent, there is also going to be six months notice ahead of the new regime entering into force because, let us face it, the changes are going to be radical. The Crown Commercial Service intends to roll out a learning and development programme through, I think, the Government Commercial College ahead of implementation just to make sure that contracting authorities, by the time the new regime does hit, are as familiar as they can be with what they are supposed to be doing that is different from what they are supposed to be doing now.
As part of the new legislation there will be a series of principles of procurement. So if you have a look at the response you will see those in there. They will be enshrined in the legislation. There will be, I think, six of them.
The public good which will include, or basically entail, thinking more widely than is the case now about national priorities and, of course, I think it is into that strand that the NPPS and the statutory duty to have regard to it is going to slot.
Secondly, obtaining value for money. Thirdly, integrity which includes good management, good procurement and contract management, preventing frauds and corruption among other things.
Fair treatment of supplies and that goes subtly beyond equal treatment. So it includes equal treatment as we are currently used to but it also involves procedural fairness as well.
Transparency, obviously a well used term in procurement vernacular. It is going to be there, still there, and non-discrimination as well.
Proportionality will not feature in quite the same way as it does at the moment. It will be a little more limited in its reach. But I have already explained on a previous slide that proportionality will still feature, to an extent, especially perhaps around the procedural side of procurement and also in terms of making sure that certain supplier types do not feel locked out of procurement by virtue of it being disproportionate to what they can do.
There will also, on top of those principles, be statutory objectives such as open and fair competition as well. So those are also in there.
One single legal framework. At the moment there are four sets of procurement regulations, most contracting authorities will only need to have regard to one most of the time. There will be one overarching set of rules but there will be certain flexibilities retained in certain sectors. For example, for the utility sector there will still be specific exemptions for certain types of certain types of procurement. For example, defence, security and certain types of civil procurement.
At the moment, in our current regime, there is a light touch regime. So for healthcare contracts, social services contracts and so on and so forth, there is a light touch regime which requires advertisement but thereafter lighter procedural touch and greater procedural flexibility in how the procurement is actually then conducted, subject obviously to the principles of equal treatment transparency and so forth, proportionality being adhered to. That will change slightly and the light touch regime is likely to be slimmed down with the result that many healthcare contracts, for example clinical health services, will, I think, be taken out of the light touch regime, excluded altogether and placed in a new regime for health procurement which will replace what we have at the moment. And also that will result in the removal of the light touch regime from procurement, for example, for the placing of special care or care home placements and things like that where really the procurement regime, even in a light touch setting, has never really worked particularly well. So, I think, many in the health and social care sector are likely to breath a big sigh of relief when that is realised.
The three procedures which the green paper set out will be implemented as an open procedure. A competitive flexible procedure which is likely to cover a multitude of different things with different potential ways of doing it and limited tendering, a so called limited tendering procedure.
Guidance is expected for authorities to help them use the competitive flexible procedure because that is likely to replace competitive dialogue and our existing competitive procedure with negotiation and, so, it is anticipated that some guidance will be needed there as to how authorities can tackle that.
Secondary legislation might well be the case, or might well be required, in relation to the limited tendering procedure because it is proposed that there are certain civil contingency type scenarios that it will allow the government to declare states in which, a bit like states of emergency I suppose, limited tendering will be specifically able to be used.
There will be a new exclusions framework which will identify and de-bar unacceptably risky suppliers. Exclusion grounds, I think I am right in saying, will go back five years. So a supplier within the last five years is eligible for exclusion then that is the time period to be thinking about. That will extend to disclosure or the vetting requirements/selection requirements will extend to the disclosure of beneficial owners and also close connection in some cases. There will be an intention to have a Cabinet Office supplier registration system owned and operated by or on behalf of the Cabinet Office. I think the parameters of that supplier registration system are, as yet, unclear but it is likely to be helpful to have that.
Our existing procedures for setting up what are called dynamic purchasing systems, that will change a little bit and dynamic purchasing systems will henceforth, or thenceforth, be known as dynamic markets. Key differences are they will provide for more types of purchase. Most DPS at the moment are only intended for really straightforward purchases. There is going to be more freedom for them to, perhaps, be used for a wider range of purchases and also the ability to charge suppliers fees to take part, or to be on them, is to be introduced.
Frameworks. The four year framework route will be retained but then, on top of that, there will also be the option for the authorities to have eight year frameworks with a refresh point in the middle of them. That is likely to a supplier refresh point in the middle of them. That is likely to be welcomed.
Self cleaning at selection stage is likely to be retained. I understand there is a central debarment list of excludable suppliers is planned but not an immediate step.
Thirdly, there will be a variety of new procurement notices, more than we are used to seeing at the moment including a wider range of contract amendment notices for when contracts are extended or changed mid term for most amendments. I am not quite sure what the word "except" is doing there but for most amendments.
Transparency will be increased throughout the procurement life cycle. It will be interesting to see how that is received. There will be key changes here because standstill letters will not exist in the new regime in the form that we currently know them. There will instead be a proposal to require the disclosure of evaluation documents and guidance is intended to help authorities in meeting those transparency requirements, which are likely to be greater and to go on throughout more of the procurement life cycle perhaps other than is the case now.
Most of the proposals for reform of procurement challenges will not proceed as envisaged in the original green paper but the Ministry of Justice and government are, together, looking to come up with ways of speeding up the challenges process. So, by most proposals for reform will not proceed, what I mean by that is there is, for example, no intention now to create an independent review body for procurement disputes. That is a little bit disappointing because it actually means that the High Court will be retained as the forum for challenging public procurement decisions and, as Susannah and our procurement litigation colleagues will know, that can mean fees, fees, fees and perhaps reasonably high barriers for small operators to be able to challenge a procurement decision in the High Court.
The caps on damages on procurement challenges which were originally proposed in the green paper will not now be taken forward. However, there is, perhaps to sweeten the pill, an intention for there to be, sitting within the Cabinet Office again, a procurement review unit. That will be a new business unit. It might sit alongside the existing Public Procurement Review Service, that is the entity previously known as the Mystery Shopper Service, charged, or whose role will be, to investigate cases of poor policy and poor procurement practice and to make recommendations. Now, at the moment the Public Procurement Review Services, formerly the Mystery Shopper Service is a non-legal route by which someone who is dissatisfied with public procurement, for example, a supplier can, free of charge, complain to the PPRS and ask the PPRS to investigate and make recommendations to the contracting authority concerned as to how to improve its procurement practices next time round. It does not have legal teeth other than to require authorities to submit information to it. All it can do is make recommendations on how procurement can be improved.
The PRU, the Procurement Review Unit, will probably have rather more teeth to predominantly, by its ability to issue directions, to address institutional bad practice. So if it see institutional or endemic bad practice going on in procurement it can issue directions to contracting authorities across the public sector to do something about it.
And that really was my update on the key points of the government response to the TPS green paper. Congratulations if you have made it through to this point. We will now have a few minutes for questions, if you can stick around, if not do not worry the session is recorded and we will respond to any questions you might have afterwards.
Thank you.
Susannah: Thank you very much, Chris. I think we have reached our full hour actually so, I think, it may be the case that we should revert on questions later by way of email because I know we have had quite a few. So, I think, it would be best if we do that in the circumstances.
But thank you very much to everybody for coming along and listening to that very informative talk. We have recorded the session so we will be circulating a copy together with the slides and, as I say, we will get back to those of you who have asked the questions as well.
Just a word that our next session will be on Wednesday, 11 May so please do keep an eye out for that and we will be sending out invitations nearer the time.
I think that now just leaves me to say thank you very much, apologies for the very slight overrun, and we will see you hopefully in a few months time.
Chris: Thanks very much everyone.
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