The New Procurement Act, or not?
Last week, Government announced the delay to the introduction of the Procurement Act 2023 from 28th October 2024 to 24th February 2025 (see https://questions-statements.parliament.uk/written-statements/detail/2024-09-12/hcws90). The main reason for the delay, being that the new Labour Government wanted time to produce a new National Procurement Policy Statement (NPPS) to align with the Government’s “Missions”. But is this all a smokescreen?
I recently attended a “Procurement Summit” hosted by a leading law firm, with panel guests including barristers, lawyers, procurement consultants and representatives from the public sector. A number of topics were covered at the summit and the day concluded with a Q&A session with the panel. I got to ask my question:-
“Is the new Procurement Act better than the existing Act
and if so, please give one example of where it is better.”
I cited the example of our friends, north of the border, where the Scottish Government had already decided to maintain their current legislation under the Public Contracts (Scotland) Regulations 2015, which is broadly similar to the rest of the UK under the current Public Contracts Regulations 2015, in effect, enshrining the current EU Directive. The Scots adopting the approach of “if it ain’t broke, don’t fix it!”
One by one, the panel provided their response…
“No!”
“Eh, definitely not!”
“Absolutely not!”
Consequently, the second part of my question didn’t require a response. Those at the conference, including members of the panel, cited particular issues with the new Act:-
Poorly drafted.
Navigating through the Procurement Act (PA23) and the Procurement Regulations (PR24) as well as Cabinet Office guidance was confusing.
Why has the new Act dispensed with the key tenets of public procurement as so well defined under Regulation 18 of the current Act, particularly in terms of transparency?
There are 17 types of notice to be issued. How will authorities manage the additional administrative tasks required under the Act?
What will the penalties be for failure to publish a notice? How will this be monitored in practice?
The additional requirements under the new Act will require recruitment and upskilling – can the public sector afford to provide the necessary resources required to ensure compliance? When asked if teams were prepared, the overall response was “No”.
The new Competitive Flexible Procedure is so broad that it could lead to much confused interpretation and the potential for challenge.
So, if the delay to introduction was to allow the Government time to re-write the NPPS, then it would also surely allow authorities more time to mobilise their teams? Was Government listening to their public sector bodies and took this into consideration too?
Another reason why the Government has delayed, could be that the conspiracy theorists amongst us think that the Government has no intention of introducing the Act at all? Let’s just consider this for a moment. The Labour Party manifesto is clear in terms of the UK’s relationship with Europe:-
With Labour, Britain will stay outside of the EU. But to seize the opportunities ahead,
we must make Brexit work. We will reset the relationship and seek to deepen ties with
our European friends, neighbours and allies. That does not mean reopening the
divisions of the past. There will be no return to the single market, the customs union,
or freedom of movement.
Instead, Labour will work to improve the UK’s trade and investment relationship
with the EU, by tearing down unnecessary barriers to trade.
But at the G7 meeting in Italy in June, Jonathan Reynolds, Business Secretary told the EU that:-
The UK wants “a closer, more mature, more level-headed relationship with
our friends in the European Union”.
The problem that Labour has, is that if it wants a closer relationship with Europe and in particular, on trade, then it will require the UK to “play by the rules”, which, would most likely mean joining the Single Market, i.e. like Norway. Joining the Single Market would enable freedom of movement for goods and services, but it would also mean people too and this would appear to many, as a reversal of Brexit and a political headache for Labour.
Keir Starmer is pro-European and has been on a charm offensive since taking office, meeting with key European leaders. It may be that discussions with the EU on a trade deal are taking place, but I don’t see the 27 members of the EU granting the UK to have its own special trade deal, without the UK having to concede in some way. And I suppose this is where the conspiracy theory comes in. Could it be that delaying the introduction of PA23 is to allow time for the Government to thrash out a trade deal with Europe? Has Labour been advised by the EU that any trade deal will mean playing by the rules? At least by deferring the introduction of the Act means that the Government doesn’t need to repeal the Act, well, not for now anyway!
I personally think we haven’t heard the last of this yet and I expect some more twists and turns along the way. In the meantime, the training and “deep dives” will continue. Authorities will recruit and train their teams. Countless more seminars and conferences will take place. Template documentation and processes will be developed in readiness. Procurement strategies will be written. Projects will be geared up, ready to be procured under the new Act.
All of this takes up time and resource, when the public sector purse strings are already stretched. Perhaps what would be nice is if the new Government listened to authorities who are struggling to “gear up” and take this into account – perhaps a further delay or even a re-draft of the Act. In the meantime, we can continue under the old Act, doing what we’ve always done, overall, pretty well and fairly efficiently. Now there’s a thought…
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Neil Thody is a Fellow of the RICS, leading procurement specialist, CEDR/RICS Mediator, RICS Adjudicator and Independent Adviser, working with clients across multiple sectors.