Regulated procurement | Regulatory Outlook September 2022

UK Procurement Bill overhauls rules for exclusion of suppliers

As the Procurement Bill is set to continue its journey through the House of Lords this month, we have taken a deeper look into a key change the new regime will introduce. Mandatory and discretionary exclusion of suppliers was an area identified as unclear and confusing in the current regime. A number of the changes are intended to make the exclusions simpler, clearer and more focused on suppliers that pose an unacceptable risk to effective competition for contracts, on reliable delivery, and on the protection of the public, the environment, public funds and national security interests. From a supplier's perspective, the Bill will increase the degree of scrutiny of past offences or misconduct and, as such, requires action to plan for these changes. Read our Insight for further information on how you can be preparing for what is coming down the line.

NHS procurement breach not 'sufficiently serious' to award damages

In the recent case of Braceurself Limited v NHS England [2022], the High Court handed down a judgement in relation to the question of whether a breach of the Public Contracts Regulations 2015 is "sufficiently serious" to warrant an award of damages. This decision raises prospect for claimants of being denied damages even if they succeed in a liability trial. Read our Insight for further analysis.

Welsh government publishes update on Procurement Bill

The Welsh government has published an update on the Welsh applications of the Procurement Bill. The press release explains that parts of the Bill will not apply to Wales:

• The Bill states that for contracts valued over £2 million, or modified contracts with a value over £2 million, contracting authorities must publish a copy of that contract on the Central Platform. However, Welsh contracting authorities will not be required to follow this rule as Welsh ministers have agreed that most of this information will already be in the public domain.
• The Bill states that a separate pre-qualification (PQQ) stage for below threshold procurements must not be used. This will not be the case for Welsh contracting authorities who can continue to use the PQQ stage for below threshold procurement if they see a benefit in doing so.

Furthermore, the Bill makes provision for the Welsh ministers to publish a Wales Procurement Policy Statement, and for Welsh contracting authorities to consider this when undertaking procurement functions. The Wales Procurement Policy Statement can be found here.

Government publishes updated Consultancy Playbook and Construction Playbook

On the 5 September, the Cabinet Office published updated versions of the Consultancy Playbook and the Construction Playbook.

The updated version of the Consultancy Playbook includes new guidance on the following:

• Knowledge and skills — a note providing more detailed guidance for departments on how to embed knowledge generation, knowledge and skills transfer, and sharing across the contract lifecycle.
• Delivery models — guidance around the key steps for contracting authorities to consider right at the start, including strategic workforce plans, the GCH, and the Cabinet Office controls.
• Considering access for SMEs — the playbook now contains an "SME roadmap", which highlights the key actions for contracting authorities to consider across the commercial lifecycle to facilitate access for companies of all sizes.
• IR35 — additional guidance around consultancy-specific off-payroll working rules considerations.
• Roles and responsibilities — the consultancy playbook now contains an OKUA model, which provides an analysis of the key playbook stages mapped against functional groups. OKUA stands for:

• Ownership: Individuals within the function lead the activity and have overall responsibility for it. "Joint-O" is used where ownership is split across a number of functions
• Knowledge: Individuals within the function are the subject matter experts on at least one element of the activity
• Understanding: Individuals within the function understand what the activity is and what good looks like
• Awareness: Individuals within the function know what activities are required and who is responsible

• Going to market — updated guidance on long term contracting models, and new guidance around writing specification, evaluation criteria and payment mechanisms.

The updated version of the Construction Playbook includes some of these key updates:

• Digitalisation – there is a new "expectation" for government departments and their arm's length bodies (ALBs) to set targets for the level of use of modern methods of construction in the delivery of projects and programmes. See also the newly published Modern Methods of Construction Guidance Note.
• The updated playbook endorses the 24 recommendations in "Constructing the Gold Standard", which was published in December 2021 following an independent review of public sector construction frameworks. A summary of the review and its recommendations has also been published alongside the updated playbook.
• Sustainability and promoting net zero – this is a running theme throughout the playbook and with the updated playbook, the government also published the "Promoting Net Zero Carbon and Sustainability in Construction Guidance Note" which contains practical resources on decarbonisation for those procuring construction and infrastructure projects, including the Chancery Lane Project's contract clauses.
• The playbook now refences the Building Safety Act 2022 and includes accountability for safety through the lifecycle of a building, advice on embedding the right behaviours, and guidance for those involved in projects and procuring buildings.

All central government departments and ALBs are expected to follow both the consultancy and construction playbooks on a "comply or explain" basis.