One step closer: the Cabinet Office consults on transparency notices under the Procurement Bill

The much-heralded Procurement Bill will bring about a major reform of UK law on the award of public contracts.  The Bill is expected to receive royal assent in autumn 2023 and to go live in autumn 2024.  In preparation, the Cabinet Office has recently launched a second consultation on the proposed secondary legislation required to enact aspects of the Bill.

This latest consultation relates to the draft regulations setting out the information required under the various types of transparency notice that contracting authorities will have to publish under the new legislation.  The consultation also clarifies the Bill’s approach towards transition between the old and new regimes.

The consultation document and draft regulations can be found here.  The deadline for responses to this consultation is 11:45 pm on 25 August 2023.

The new, wider range of transparency notices

In the interests of ensuring greater openness and transparency, the Bill will require contracting authorities and utilities to publish a much wider range of notices than those currently required under the existing procurement regulations.  In summary, the new notices are as follows:

• Pipeline Notice: this must be published by a contracting authority if it expects to pay more than £100 million under relevant contracts during a given financial year.  The notice must give advance notice of any public contracts with an estimated value of more than £2 million which the authority expects to award in the next 18 months.
• Planned Procurement Notice: this optional notice will give advance information to the market about an upcoming procurement.  If published between 40 days and one year before publication of the contract notice, it will entitle the contracting authority to apply an accelerated tender period.
• Preliminary Market Engagement Notice: this notice may be used to invite suppliers to participate in preliminary market engagement or to notify the market that this engagement has taken place.  If such engagement has been conducted but a preliminary market engagement notice was not published, the reasons for not publishing it must be stated in the tender notice (although the consultation proposes that private utilities be exempt from this requirement).
• Tender Notice: this is the new name for the contract notice that has to be published at the start of all relevant contract award procedures, advertising the contract and calling for competition.
• Dynamic Market Notice: this is used to advertise a dynamic market (called a dynamic purchasing system or qualification system under the current rules).
• Transparency Notice: this gives notice that a contracting authority intends to make a direct award of a contract and its grounds for doing so.  It is similar to a voluntary ex-ante transparency (VEAT) notice under the existing regime, except that it is mandatory and must be published earlier in the procurement process.
• Procurement Termination Notice: this notice informs the market that a contracting authority has decided not to proceed with a procurement. It only has to be published if the authority has already published a tender notice or transparency notice for the procurement.
• Assessment Summary: this summary is not a published notice but must be provided to any supplier that submitted an assessed tender in a competitive procurement, before publication of the contract award notice.  The summary must include the scores awarded to the recipient’s tender and the reasons why particular scores were given against each criterion.  Each unsuccessful bidder will also receive a copy of the winning supplier’s assessment summary.
• Contract Award Notice: this notifies the market of the outcome of a procurement process and that a contract is about to be entered into.  It also starts the mandatory standstill period of 8 working days, during which a legal challenge may be launched before the contract is signed.  The combination of the assessment summary and contract award notice will therefore replace the current requirement to send a standstill letter to each bidder.
• Contract Details Notice: this notice informs the market that the contract has been entered into and gives certain details, such as the estimated value of the contract and its start and end dates.  The notice must be published within 30 days of the contract being signed.  The Bill also requires the publication, within 90 days, of the contract itself if it has a value over £5 million.
• Payments Compliance Notice: the Bill requires contracting authorities to publish specified information every six months, detailing how quickly they have paid their suppliers.
• Contract Performance Notice: this notice records the supplier’s performance against published key performance indicators (KPIs) and information relating to any serious breach of contract.
• Contract Change Notice: this must be published by a contracting authority before it modifies an existing public contract.  The notice may provide for a voluntary standstill period.  The modification itself must also be published where the contract is valued over £5 million.
• Contract Termination Notice: this must be published within 30 days of a public contract being terminated.

The draft Statutory Instrument (SI) accompanying the consultation document, entitled The Procurement (Transparency) Regulations, lists the information to be provided in each of the above types of notice.  The consultation document itself poses questions about each type of notice: these typically ask whether the notice provided for in the draft SI will provide adequate information and whether it reflects the underlying policy intent, as established in the Bill.

In our view, the notice requirements in the draft SI do broadly reflect the policy intentions expressed in the Bill.  However, there is no doubt that the need to complete so many different types of notice will place a significant additional administrative burden on contracting authorities.  It may also increase the risk of challenge, particularly in relation to direct awards and contract modifications.

Central digital platform

The consultation document discloses that the Cabinet Office is developing a new, centralised digital platform for the publication of public procurement notices and documentation.  The digital platform will enable notices and documents to be accessible by electronic means, free of charge and through a single point of access.  It appears that this platform will replace the current Find a Tender Service.

Suppliers wishing to bid for public contracts will need to be registered on the platform and to submit certain core information about their business.  This ‘tell us once’ approach will enable suppliers to bid for public sector opportunities without having to duplicate core information with each bid that they submit.  It will also assist contracting authorities in determining whether a supplier falls under any of the grounds for exclusion.

Transitional provisions

The consultation document confirms the fundamental principle that procurements that start after the effective date when the new legislation enters into force must be conducted in compliance with the new regime.  Conversely, any procurement that starts before that date will continue to be governed by the old regulations (e.g. the Public Contracts Regulations 2015) until its conclusion.

For this purpose, a procurement is to be regarded as “started” when a contracting authority publishes a notice, or contacts one or more suppliers directly, inviting expressions of interest or the submission of tenders for the contract in question.  Moreover, any non-competitive procurement entered into later than 3 months after the Bill’s entry into force will be subject to the rules of the new regime, unless a VEAT notice has already been published for the procurement.

Helpfully, the consultation document confirms that framework agreements, dynamic purchasing systems and qualification systems set up lawfully under the old procurement regulations will remain compliant routes to market, even after the Bill enters into force.  Hence, it will remain permissible to award contracts through these tools, set up under the old regime, until they expire or are replaced.

Earlier consultation

The current exercise follows an earlier consultation, launched in June, regarding certain technical areas of the Bill which require lists, calculations or further definitions.  Those areas include the scope of the “light touch” regime for certain specialised services, and the turnover tests applicable under the exemptions for contracts between contracting authorities or for intra-group utility contracts.  Details of this earlier consultation are available here.