Regulated procurement | UK Regulatory Outlook July 2023

Update on the Procurement Bill

The Procurement Bill is currently in its final stages and the House of Lords will consider the House of Commons amendments on 11 September 2023. If the Lords do not agree to all the Commons changes, then the bill could ping-pong between the two Houses until an agreement is reached. Once an agreement has been reached, the bill will receive Royal Assent and become law.

The Cabinet Office has also launched the second consultation on draft secondary legislation under the bill.  This consultation concerns the transparency notices that are required under the new regime; the organisations covered by the term "defence authority" used in the bill; and a number of other matters relating to transparency. The consultation closes on 25 August.

This autumn we will be running a series of events on the new Procurement Act, including webinars on how supplier performance will be monitored under public contracts (and what happens if performance is not up to scratch), transparency, and bringing procurement challenges.

PPN 07/23: Government Security Classifications Policy 2023

The Government Security Classifications Policy (GSCP) has been updated to address gaps in the previous policy and changes in government working practices since the last major update in 2013.

 In-scope organisations for PPN 07/23 include central government departments, executive agencies, non-departmental public bodies and NHS bodies. Other public sector contracting authorities may also wish to apply the guidance.

A 12 month implementation period has been provided in order to allow sufficient time for the requirements of the updated classifications policy to be integrated into commercial activity. The new policy should be implemented by June 2024.

A full suite of guidance documents is available with specific guidance for commercial teams and suppliers set out in Guidance 1.6: Contractors and Contracting Authorities.

High Court rules on the relationship between the Public Contract Regulations 2015 and Concession Contracts Regulations 2016

In the recent case of Dukes Bailiffs Limited v Breckland Council,  the High Court considered whether a local authority award to outsource the enforcement of its debts was governed by the Public Contract Regulations 2015 (PCR 15) or the Concession Contracts Regulations 2016 (CCR 16); or alternatively whether it was amenable to judicial review. The judge noted that this case was a sequel to JBW Group v MoJ (2012) and Newlyn v WFLBC (2016), but as those cases pre-dated the CCR 16, the matter had to be re-considered. The judge ultimately came to the same conclusion as in JBW and Newlyn.

Dukes contended that the contract award was above the threshold for "public service contracts" under the PCR 15 and the council that it was a "concession contract" below the minimum threshold for the CCR 16.

The distinction mattered in this instance due to the remedies potentially available or unavailable to Dukes. If the PCR 15 applied, the court would be able to make a declaration of ineffectiveness, but if the CCR 16 applied, there are no statutory remedies as the contract would be below the minimum threshold. Dukes would in the latter case not be able to reverse the contract grant, which is why it also brought the judicial review seeking a quashing order.

The High Court held that Dukes had no real prospect of success on the PCR 15 claim and granted summary judgment in favour of the council on this point. The High Court also refused permission for judicial review. Duke's claim will now proceed to trial as a damages only claim.

The judgment provides a detailed discussion of factors that will be of general interest to parties considering whether a contract award is governed by the PCR 15 or the CCR 16. Of note is the court's assessment that the position will need to be reconsidered when the new Procurement Bill is passed.