Procurement: three key questions that all authorities should ask themselves

New public procurement rules have been in place for almost two weeks now.

https://twitter.com/gov_procurement/status/570887148024537088

Much has been written about the Public Contracts Regulations 2015 (PCR); less on how they fit in with other laws and guidance.

Whilst contracting authorities need to understand and apply the PCR for any new tenders that they publish—except where an exemption applies—they also need to be aware of other guidance that may apply.

Here's three key questions that every contracting authority ought to ask themselves:

Have we checked out the government's main page on the new rules?

Details on the new rules are set out by the Cabinet Office and the Crown Commercial Service's on their joint webpage: Transposing EU procurement directives.

  • Has all relevant guidance been checked? (New guidance is added regularly and could be easily overlooked. For example, on 5 March guidance was added on the new light touch regime for some service contracts.)
  • Does it apply to us?
  • Have we taken advantage of the free training that is available (such as in the Crown Commercial Service's Learning Hub?

Have we considered any other applicable laws that may apply during the procurement process?

Remember that procurements do not take place in a legal vacuum where only public procurement law applies.

Therefore, the areas of law below, in particular, should also be considered in addition to the PCR (bearing in mind that not all of them may apply).

  • bribery and corruption law
  • contract law
  • data protection and freedom of information law (including audit law)
  • employment law (including the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE))
  • equality law (including the public sector Equality Duty)
  • health and safety law
  • judicial review law
  • local government law (including the Best Value Duty (BVD))
  • public sector law (including the need to consider the economic, environmental and social benefits of procurement), and
  • state aid, and
  • laws on the Welsh language (including the Welsh Language Board’s/ Bwrdd Yr Iaith Gymraeg’s guidance on public sector contracts and the Welsh Language. The Board was abolished on 31 March 2012 but this guidance is still referred to on the Welsh Government’s website)

Does any other specific guidance apply?

You should always check what guidance applies to the contracting authority (bearing in mind that such guidance may not be circulated widely. Equally, guidance may apply to specific matters only such as environmental sustainability; or equality and non-discrimination).

  • guidance from the Organisation for Economic Co-operation and Development (OECD) (particularly in terms of preventing corruption and enhancing good management)
  • the public procurement homepage of the European Union
  • HM Government (particularly its guidance 'Procurement for growth' published in May 2013 and its procurement pledge published in April 2013). Guidance on best practice is set out in Procurement Policy Notes (PPNs). Guidance is also provided for specific sectors such as the health sector and specific matters such as pre-qualification questionnaires (PQQs) or completion of the new forms under the PCR 2015.
  • guidance from the National Procurement Service/ Y Gwasanaeth Caffael Cenedlaethol (in Wales only). Guidance on best practice is also set out in Procurement Advice Notes (PANs),
  • guidance from the Crown Commercial Service (CCS), and
  • other relevant bodies may have their own rules and guidance such as:
    • local authorities (eg standing orders or policies). Such bodies may, for example, encourage collaborative procuring such as with other contracting authorities. The Local Government Association’s procurement homepage also has details of the National Procurement Strategy for Local Government. This national strategy document contains recommendations for district councils, single-tier and country councils and Professional Buying Organisations (PBOs). Furthermore, the Society of Procurement Officers (SOPO) website contains guidance of interest to its members
    • universities (eg statutes, regulations, standing orders or policies). See the Higher Education Funding Council for England’s (HEFCE) procurement homepage for details on these consortia and procurement in the sector generally. The Higher Education Funding Council for Wales’/ Cyngor Cyllido Addysg Uwch Cymru (HEFCW) procurement homepage has details of polices that apply to Welsh universities. Bear in mind that collaborative procurement for English universities is organised through four purchasing consortia so their rules and policies should be checked if necessary:
      • London Universities Purchasing Consortium (LUPC)
      • North Eastern Universities Purchasing Consortium (NEUPC)
      • North Western Universities Purchasing Consortium (NWUPC), and
      • Southern Universities Purchasing Consortium (SUPC).
    • acute trusts; clinical commissioning groups (CCGs); mental health trusts; health and care trusts; ambulance trusts; area teams; special health authorities; and other relevant healthcare bodies. Each of these is likely to have its own constitutional arrangements and procurement policies which should be checked carefully. Bear in mind that there is currently an exemption for certain clinical commissioning contracts. These bodies are not subject to the new rules until 18 April 2016 (see the rules in regulations such as the National Health Service (Procurement, Patient Choice and Competition) (No 2) Regulations 2013, SI 2013/500).

Guidance (and best practice) may also apply to individuals who take part in a procurement process such as the code of conduct of the Chartered Institute of Purchasing and Supply (CIPS). Moreover, a contracting authority may need to comply with, or have regard to, voluntary International Standards relating to procurement (such as those published by the International Organization for Standardization (ISO)).

So what happens if you simply ignore the guidance?

Not a good idea!

Failure to comply with procurement law (and related guidance) can create all manner of problems particularly where there is intense scrutiny in the use of public monies. Better to spend time at the beginning of the process getting it right than trying to fix mistakes once they have occurred. Even small mistakes can be fatal to a tender.

So what do you think? Do the new rules offer greater flexibility? Are they easier to understand? Do let us have your thoughts below.

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