HCSA Green Paper (Transforming Public Procurement) Response: March 4

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HCSA Green Paper (Transforming Public Procurement) Response: March 4

The Green Paper on transforming public procurement is certainly timely on the back of some of the real challenges that have been presented to Procurement Teams in the NHS during the COVID-19 pandemic.

There is currently no real guidance or structure within the current system around how we can procure compliantly in an emergency, which has meant delay and reactive changes being made to respond to the demand in order to ensure we hold stock in the right place, at the right time.

At a high level the paper sets out positive intentions and a desire to make genuine improvements and make us question what really is possible, albeit it remains light on detail at this point and reliant on assumption and anecdotal evidence.

This does, however, appear to be a once in a lifetime opportunity to review how the whole system is set up, how resilient and adaptable it is and what the primary lessons to be learned are.

 

We address specific points in the Green Paper below:

Chapter 1: Procurement that better meets the UK’s needs

 

Q1. Do you agree with the proposed legal principles of public procurement?

We agree that the proposed legal principles of public procurement [ value for money (VFM); the public good; transparency; integrity; efficiency; fair treatment of suppliers, and non-discrimination] -which expand on the three ‘EU Treaty’ principles of Equal Treatment, Transparency, and Non- Discrimination – constitute a sound basis to move forward on. 

 

Q2. Do you agree there should be a new unit to oversee public procurement with new powers to review and, if necessary, intervene to improve the commercial capability of contracting authorities?

We agree there should be a new unit to oversee public procurement with new powers to review, and if necessary, intervene to improve the commercial capability of contracting authorities. We feel this will help to take the pressure (- and the costs) off the judicial system, and speed up the review, adjudication and decision process as presently experienced within the tribunals presently available within the judicial system. 

 

Q3. Where should the members of the proposed panel be drawn from and what sanctions do you think they should have access to in order to ensure the panel is effective?

We think members of the proposed panel should be drawn, in the first instance, from experienced members of the public procurement profession (such as exist within the body and membership of the HCSA), alongside individuals – active or retired – who are renowned and known for their legal and/or technical expertise in the area of public procurement. There should be an in-built regional balance to the panel- at the very least on a rotational basis. 

Sanctions available to the panel should include recommendation that a competition, further to a rigorous review following a complaint, be re-run; recommendation to debar a supplier/contractor on the basis of past performance (subsequent to legal advice).   

 

Chapter 2: A simpler regulatory framework

Q4. Do you agree with consolidating the current regulations into a single, uniform framework?

We agree that the current suite of regulations should be consolidated into a single uniform framework covering public contracts, concessions, utilities, and allied legislation, for ease and ‘simplicity of use’ and construing/interpretation. 

Q5. Are there any sector-specific features of the UCR, CCR or DSPCR that you believe should be retained?

A consolidated suite, correctly compiled, should incorporate the ability to directly award, subject to review.

 

Chapter 3: Using the right procurement procedures

Q6. Do you agree with the proposed changes to the procurement procedures?

We agree with the proposed changes to the procurement procedures: reducing the number from the existing seven, to the three (comparatively light touch) procedures proposed (- competitive flexible procedure; open procedure; limited tendering procedure).  

 

Q7. Do you agree with the proposal to include crisis as a new ground on which limited tendering can be used?

We agree with the proposal to include crisis as a new ground on which limited tendering can be used, provided the definition of crisis is rigorous, thus preventing any possible abuse of the new ground which will inevitably provide the ability to award contracts without the same level of transparency demanded in a non-crisis situation.

 

Q8. Are there areas where our proposed reforms could go further to foster more effective innovation in procurement?

We think these will emerge with further discussions, as the transformation programme progresses.

Q9. Are there specific issues you have faced when interacting with contracting authorities that have not been raised here and which inhibit the potential for innovative solutions or ideas?

None other than so far cited.

 

Q10. How can government more effectively utilise and share data (where appropriate) to foster more effective innovation in procurement?

We think suggestions may emerge with further discussions, as the transformation progresses.

 

Q11. What further measures relating to pre-procurement processes should the Government consider enabling public procurement to be used as a tool to drive innovation in the UK?

We think suggestions may emerge with further discussions, as the transformation programme progresses.

 

Q12. In light of the new competitive flexible procedure, do you agree that the Light Touch Regime for social, health, education and other services should be removed?

We believe that the Light Touch Regime for social, health, education, and other services has promoted a culture of flexibility and ability to design appropriate competitions for these procurement exercises, and for this reason retention of the Light Touch Regime should be considered.

  

Chapter 4: Awarding the right contract to the right supplier.

Q13. Do you agree that the award of a contract should be based on the “most advantageous tender” rather than “most economically advantageous tender”?

Award of a contract should be based on “ most advantageous tender  rather than “most economically advantageous tender”, provided the  definition of “ advantageous “ provides the ability to include  factors related to long term strategic value for money (VFM)  – with perhaps the availability of a set term [10/20/30 years] as a set factor in the evaluation of that strategic VFM.

Q14. Do you agree with retaining the basic requirement that award criteria must be linked to the subject matter of the contract but amending it to allow specific exceptions to set by the Government?

We agree with retaining the requirement that award criteria must be linked to the subject matter of the contract but amending it to allow specific exceptions to set by the Government, provided those exceptions are agreed upon by the Government based on, inter alia, advice from experts drawn from professionals in procurement membership bodies such as the HCSA. 

 

Q15. Do you agree with the proposal for removing the requirement for evaluation to be made solely from the point of view of the contracting authority, but only within a clear framework?

We agree with the proposal for removing the requirement for evaluation to be made from the point of view of the contracting authority, provided the national framework which informs the evaluation factors additional to the ones emanating from the contracting authority, are open to be added to, and regularly revised, in compliance with the stated priorities of those contracting authorities, either on a collective (e.g., GA), or regional basis.   

 

Q16. Do you agree that subject to self-cleaning fraud against the UK’s financial interests and non-disclosure of beneficial ownership should fall within the mandatory exclusion grounds?

We agree that, subject to self- cleaning, fraud against the UK’s financial interests and non- disclosure of beneficial ownership should fall within the mandatory exclusion grounds.

 

Q17. Are there any other behaviours that should be added as exclusion grounds, for example tax evasion as a discretionary exclusion?

 Apart from the proposed addition of tax evasion, we think the present list of discretionary exclusions is adequate.

 

Q18. Do you agree that suppliers should be excluded where the person/entity convicted is a beneficial owner, by amending regulation 57(2)?

We agree that suppliers should be excluded where the person/entity convicted is a beneficial owner, by amending 57(2).

Q19. Do you agree that non-payment of taxes in regulation 57(3) should be combined into the mandatory exclusions at regulation 57(1) and the discretionary exclusions at regulation 57(8)?

We agree that non-payment of taxes in regulation 57(3) should be combined into the mandatory exclusions at regulation 57(1) and the discretionary exclusions at regulation 57(8).

Q20. Do you agree that further consideration should be given to including DPAs as a ground for discretionary exclusion?

We agree that further consideration should be given to including DPAs as a ground for discretionary exclusion.

 

Q21. Do you agree with the proposal for a centrally managed debarment list?

We agree with the proposal for a centrally managed debarment list.

 

Q22. Do you agree with the proposal to make past performance easier to consider?

We agree with the proposal to make past performance easier to consider. The ability to keep the list updated in real time will, however, be crucial in making its use integral to procurement processes. 

 

Q23. Do you agree with the proposal to carry out a simplified selection stage through the supplier registration system?

We agree with the proposal to carry out a simplified selection stage through the supplier registration system.

 

Q24. Do you agree that the limits on information that can be requested to verify supplier self-assessments in regulation 60, should be removed?

We agree that the limits on information that can be requested to verify supplier – self assessments in regulation 60, should be removed.

 

Chapter 5: Using the best commercial purchasing tools.

Q25. Do you agree with the proposed new DPS+?

We agree with the proposed new DPS +.

 

Q26. Do you agree with the proposals for the Open and Closed Frameworks?

We agree with the proposals for the Open and Closed Frameworks.  In relation to the proposed Open Frameworks however, careful thought must be given to the initial period after which they are opened: too short an initial ‘locked’ period will disincentivise potential suppliers to participate. 

 

Chapter 6: Ensuring open and transparent contracting

Q27. Do you agree that transparency should be embedded throughout the commercial lifecycle from planning through procurement, contract award, performance, and completion?

We agree that transparency should be embedded throughout the commercial lifecycle from planning through to procurement, contract award, performance, and completion.

 

Q28. Do you agree that contracting authorities should be required to implement the Open Contracting Data Standard?

We agree that contracting authorities should be required to implement the Open Contracting Data Standard, but consideration should be given to whether this should be on a phased basis; and after a programme of training implemented by central Government.

 

Q29. Do you agree that a central digital platform should be established for commercial data, including supplier registration information?

We agree that a central digital platform should be established for commercial data, including supplier registration information.

 

Chapter 7: Fair and fast challenges to procurement decisions

Q30. Do you believe that the proposed Court reforms will deliver the required objective of a faster, cheaper, and therefore more accessible review system? If you can identify any further changes to Court rules/processes which you believe would have a positive impact in this area, please set them out here.

We believe that the proposed Court reforms will deliver the required objective of a faster, cheaper and therefore more accessible review system.

 

Q31. Do you believe that a process of independent contracting authority review would be a useful addition to the review system?

We believe that a process of independent contracting authority review would be a useful addition to the review system, provided the personnel staffing the independent contracting authority consist of legally literate individuals, as well as those representatives of nationwide procurement expertise, to include organisations such as HCSA et al.

 

Q32. Do you believe that we should investigate the possibility of using an existing tribunal to deal with low value claims and issues relating to ongoing competitions?

We concur with the belief that this Cabinet Office initiative should investigate the possibility of using an existing tribunal to deal with low value claims and issues relating to ongoing competitions. In pursuing that investigation, the expertise and experience of bodies such as HCSA should be drawn on.

 

Q33. Do you agree with the proposal that pre-contractual remedies should have stated primacy over post-contractual damages?

We agree with the proposal that pre- contractual remedies should have stated primacy over post- contractual damages, as the experience of procurement litigation to date, as touched upon, does appear to unnecessarily pivot towards (High Court) litigation (and the corollary costs), where pre-contractual remedies, if available, could have prevented – in many cases, abortive – costs, and time spent.

 

Q34. Do you agree that the test to list automatic suspensions should be reviewed?

Please provide further views on how this could be amended to achieve the desired objectives.

We agree that the test to list automatic suspensions should be reviewed.

 

Q35. Do you agree with the proposal to cap the level of damages available to aggrieved bidders?

We agree with the proposal to cap the level of damages available to aggrieved bidders.

 

Q36. How should bid costs be fairly assessed for the purposes of calculating damages?

Bid costs should be fairly assessed for the purpose of calculating damages by ensuring that only reasonable and necessary costs are included – i.e., excluding those costs of bid preparation which may have been incurred, but were not deemed necessary, given the nature of the procurement (-e.g. exorbitant consultants’ costs).   

 

Q37. Do you agree that removal of automatic suspension is appropriate in crisis and extremely urgent circumstances to encourage the use of informal competition?

We agree that removal of the automatic suspension in crisis and extremely urgent circumstances to encourage use of informal competition, is warranted.

 

Q38. Do you agree that debrief letters need no longer be mandated in the context of the proposed transparency requirements in the new regime?

We agree that debrief letters need no longer be mandated in the context of proposed transparency requirements in the new regime.

 

In conclusion:

Ultimately, the devil is absolutely in the details and further clarification and further engagement with the Procurement Profession is still required, together with practical guidance and an understanding of when changes are expected and how these should be implemented at ground level.

 We remain positive about the potential for the Green Paper to be the basis for an improved landscape for public procurement going forward.