Public Procurement Challenges ' A New Regime Beckons

• Published date: 08 February 2021
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Walker Morris
• Author: Lynsey Oakdene and Kathryn Vickers

As the UK looks to its post-Brexit future, the government is consulting until 10 March 2021 on transforming public procurement. Its stated goal is to speed up and simplify procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery.

In this briefing, Walker Morris commercial dispute resolution and procurement specialists Lynsey Oakdene and Kathryn Vickers consider one aspect of the consultation - the proposals for fair and fast challenges to procurement decisions. Commentary on other aspects of the consultation and the post-Brexit position will be covered in a separate briefing to be published shortly.

What is being proposed?

The proposals, which are significant, are set out in Chapter 7 of the government's Green Paper. In short, they are:

• Reforming Court processes, including through the introduction of a tailored expedited process, to speed up the review system and make it more accessible.
• Investigating the use of a tribunal system to determine low value claims and issues on ongoing procurements and for wider use should the proposed Court reforms not deliver the required benefits.
• Refocusing redress for suppliers onto pre-contractual measures which preserve their opportunity to participate in the procurement.
• Capping the level of damages available to aggrieved bidders to legal fees and 1.5 x bid costs, reducing the attractiveness of speculative claims.
• Amending the test to be applied by the Courts when determining whether to lift the automatic suspension so that it is no longer based on the test applied when granting an injunction, but is a more appropriate, procurement-specific test.
• Removing automatic suspension on the award of contracts let competitively in crisis or extreme urgency situations.
• Removing the mandated requirement to provide an individual debrief letter to each bidder at the end of a procurement process.

And why?

According to the Green Paper, while the current procurement review system is rigorous, thorough and trusted, concerns have been raised by suppliers and contracting authorities that the process is lengthy, expensive and complex. The government wants to develop a new remedies system that can make faster decisions on procurement challenges on all types of procurements, relying more on pre-contractual measures, so that fewer challenges proceed to court for...