The Public Contracts Regulations 2015 (the PCR) at regulation 18(1) state that it is a principle of public procurement that contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
Unlike the PCR, the Procurement Bill (the Bill) does not include an express principle of transparency in public procurement. This could be interpreted as the Bill placing less emphasis on transparency than is seen under the current regime. However, the UK Government has said that it intends the Bill to deliver world-leading standards of transparency in public procurement. So, what does this actually entail and has this been achieved in the Bill?
A detailed review of the Bill reveals that, despite transparency not being an express requirement, it remains a top priority driven by the introduction of a large number of new procurement notices covering the entire procurement lifecycle from planning to contract expiry.
The notices are spread across the whole lifecycle of procurement from the planning and tender stages through to entering into and managing a public contract and termination of public contracts. In summary, the notices will capture data on upcoming procurement opportunities, opportunities to bid, successful and unsuccessful bidders, the contract and its management up until it comes to an end. All data will be displayed and managed via a central digital platform.
Will this mean an increase in the level of administration for contracting authorities when procuring and managing public contracts?
The increased number of notices may add to the workload of contracting authorities and this could be seen as an unwelcome change by some. However, the benefits of publishing the additional information cannot be ignored and may well outweigh any administrative burden. Planning stage notices, for example, will allow potential suppliers to plan for future work and this increased visibility of pipeline plans should enable potential suppliers to resource more procurement activity meaning that contracting authorities could receive more bids.
Further, section 70(5) of the Bill requires contracting authorities to publish annual notices in relation to a supplier’s performance of a public contract. Ultimately, certain breaches disclosed by this notice may give rise to a discretionary ground for exclusion of a supplier from future procurements. This performance notice therefore increases visibility of previous poor performance and enhances the options available to contracting authorities when considering the position of a previous poorly performing supplier in future procurement activity.
Despite the Bill not including an express provision requiring contracting authorities to act in a transparent manner, contracting authorities will be under a greater transparency obligation than ever before. This may result in added administration for contracting authorities but with this will come the benefit of greater insight into the operative stage of public contracts and the ability to make more informed decisions when it comes to the use of public funds.