Transforming public procurement: Part 2 Consultation on draft regulations to implement the Procurement Bill

In June, we reported on the Cabinet Office's launch of Part 1 of a consultation process regarding the draft secondary legislation required to implement the Procurement Bill. This focused on areas of the Procurement Bill that require lists, calculations or further definitions to be used in practice, as the policy itself had been the subject of an earlier consultation.

On 17 July 2023, the Cabinet Office subsequently opened Part 2 of the technical consultation process. In this article, we take a look at what this second part will cover, why you might want to take part and how to do so.

So what does Part 2 cover? Transparency notices, defence authorities, digital platforms, identifiers, and assessment summaries

Part 2 mainly focuses on the transparency notices that allow contracting authorities to progress procurements through the procurement regime in an open, transparent and informative matter. These notices include the following: pipeline notice, planned procurement notice, transparency notice, contract award notice and contract performance notice.

Other key matters that the consultation seeks views on are:

1. the organisations covered by the term 'defence authority';
2. the new Central Digital Platform;
3. supplier information section under the new Central Digital Platform (which will enable suppliers to submit core information once only);
4. identifiers (the unique identifiers for organisations, procedures and notices that the digital platform requires to operate effectively);
5. assessment summaries;
6. exemptions for private utilities from the requirement to publish a preliminary market engagement notice; and
7. transitioning arrangements to the new procurement regime, including what will happen to procurements that have already commenced or were awarded under the existing regime.

Should you take part in Part 2 of the consultation?

If you are a supplier to Government, you might be interested to provide feedback on whether the contents of:

• the pipeline notice described in the draft secondary legislation will "usefully provide advance notice to suppliers of forthcoming contracting opportunities";
• the planned procurement notice described in the draft secondary legislation will "provide information needed by suppliers to determine their interest in the upcoming procurement"; and
• the tender notice described in the draft secondary legislation will "effectively advertise and commence a competitive procedure".

All of the above are important in supporting your organisation's future revenue stream.

If you're a contracting authority, you might be interested to feedback on whether:

• the contract performance notice really will provide adequate information about a supplier's performance on a contract, or the serious breach of a contract by a supplier;
• if the draft secondary legislation provides clarity about the operation of the new Central Digital Platform to be used by contracting authorities to publish their transparency notices or, if the Central Digital Platform fails, whether the workaround procedure is viable; and
• if you agree or disagree with the approach to transitional arrangements for in-flight procurements under the Public Contracts Regulations 2015 and, in particular, for the trickier category of non-competitive contracts.

Again, these have some very important practical implications for facilitating successful Government contracting with industry.

So, as with Part 1, the answer is yes - this is a second opportunity to tell the Government whether certain areas of the draft legislation work well for your organisation, or if you feel it would benefit from more clarity in places, has any potential gaps, and/or overlaps with other parts of the Bill.

How can you take part?

As with Part 1, this is not a consultation on the policy itself and respondents are asked whether they "strongly agree", "agree", "neither agree nor disagree", "disagree" or "strongly disagree" to 25 questions.

Alongside each question, respondents are also asked if they "wish to explain why you do not agree that the draft secondary legislation reflects or delivers the policy as described."

But before you answer the questions, you need to read:

• the consultation document that was published alongside the consultation questions as it sets out the context and policy intent for each of the notices and information requirements, and explains the proposed approach to transitional arrangements; and
• the draft secondary legislation, because it contains the information that must be entered for each notice.

Unsure if this impacts your organisation or how to take part in the consultation?

If you have any questions regarding the impact that the draft regulations may have on your organisation, contact our Public Procurement team who can discuss this with you further. They have the insight and technical expertise to help you understand how the draft regulations will apply to your situation, and can help guide you through participation in the consultation.

Part 2 of the consultation closes at 11:45pm on 25 August 2023.