Unlock the Power of Digital Signature Legitimacy for Procurement in United Kingdom

How to eSign a document: digital signature legitimacy for Procurement in United Kingdom

um we're going to kick off now uh hopefully some some more people will come and fill up as we go um welcome to field Fisher as you haven't been here before my name's Nick pimlott I'm a partner in the regulatory group and one of the things I do is public procurement I've worked with a number of you here in the past um so and Steve Stephen may my colleague in our dispute resolution team uh he and I work closely together on procurement litigation matters my background is advising on the sort of non-contentious side on both the public sector and the private sector side and public procurements have been doing it for about the last well since 2006 regulations if you remember that so uh We've Come quite a long way since then um I've grown rather grandly called this talk the future of public procurements in the UK but I think that's that's probably right because um as you know uh the procurement bill is currently before uh Parliament and that's what we are going to sort of talk to you about today hopefully this works that doesn't work well that's a good start isn't it um you go and um can you go and get someone I will um tell some jokes I'll tell some jokes in the meantime I'll do my introduction to wait to see what's in the slide so uh just as a sort of bit of background introduction um sort of rolling right back to to brexit uh obviously uh we had public contracts regulations and the other procurement regulations which are sort of a creature of EU law they were preserved in the domestic legislation post-brexit and so we've been sort of operating on the basis as everybody probably knows of the existing sets of regulations um are up until now and um there was a time those brexit when we thought well maybe there's going to be no procurement at all maybe the government will abandon the procurement as an idea but they didn't do that um they did sign up to something called the government procurement agreement under the uh WTO which is an international agreement uh opening up procurement markets for signatory states which include broadly speaking EU member states the U.S Canada big jurisdictions one or two others um and they signed the trading cooperation agreement with the EU which again Incorporated procurement obligations on the UK so the UK has International obligations to have essentially open transparent non-discriminatory procurement rules um then uh we had the green paper so the government put out a green paper a consultation paper in December 2020 on grandly called transforming public procurement and uh and it was I was first I was quite taken by some slightly grandiose language in the uh in the introduction for the by the minister he said it was a historic opportunity for too long modern Innovative approaches to public procurements being boiled down in bureaucratic process driven procedures we need to abandon these complicated and stifling rules and unleash the potential of public procurements I think we could maybe think at the end of this whether that ambition has been met by the bill um the uh green paper was followed by white paper which is the government's statement of policy that was a year later in December 2021 and actually you know it was actually I thought quite interesting because the government moved quite a long way put out some proposals in the green paper it definitely listened in the consultation and it moved on quite a few areas so we had the bill uh that was introduced into parliament in the House of Lords on the 11th of May this year uh what's the significance of the House of Lords well parliamentary bills can be introduced into either the Lords or the commons the most politically controversial ones tend to be introduced into the commons ones that are not politically controversial tend to be introduced into the Lords so that's the sign that this bill is not terribly politically controversial between the parties but there are clearly kind of issues which have been debated in Parliament uh it's quite a good time to be talking about it now um it's been through the so-called uh it's been effectively finished in the House of Lords so it's been through detailed examination and committee ah uh it's it's been through detail it's past the so-called report stage so pretty much all the changes are going to be made and how to build have been made and that happened like about a week ago so I've had to do a bit of catching up on that and when's is expected to come law it's got to go through the commons and expect to become law probably I think what I've heard civil servants talking about this they're pretty um uncommittal but thinking it towards the end of end of last year and there could be changes so what we're talking about now is is at least our best effort to understand what came out of the report stage in the House of Lords cup at the end of last week um and it could of course change in the comments probably not massively by that with that health warning it's not necessarily settled yet so what we're going to do today we're going to talk about two things really biggest things I'm going to do an overview of the bill um covering quite a sort of wide range of different topics not everything if you think there's anything I've missed please do shout and please do chip in by the way along the way if you have any any questions or comments or or things you want to discuss and then we'll have a coffee break and then Steve uh we'll talk about the impact of the bill on procurement litigation so this is a rather long list of things and I will uh Endeavor to get through it as quickly as possible in the next hour um and as I say it's not it's not I haven't covered everything that I could possibly cover so if you think there's anything that I've missed please do please do see starting with the scope of the bill so what the bill does is it repeals and consolidates all the current regulations so we had the public contracts regulations the utilities contracts the defense and security regulations and the concession contracts regulations all of them go become one big Act of parliament ultimately um that's quite helpful in a sense because you can look at one thing on the other hand if you're a utility you just had to look at the utilities ranks and you could not look at the other ones if you're in defense and security you're in defense and security Etc so you know it's it's good it's good and bad um now you have to read it all and see which bits don't apply to private utilities for example but you know that's that's just a feature of the consolidation I think boldly said there are no substantive changes to the key definitions of Contracting authorities utilities and public contracts and so on um I say bold I say probably because what the government has done in the bill um is to um essentially try I think I think the policy is to keep in some of these lots of the same Concepts that we already have in the procurement rules but they've changed the wording so they've tinkered with the wording and they've made it apparently simpler and sometimes they've changed the European wording and sometimes they've kept the European wedding so I think the intention is known as substantive changes um but I don't I don't guarantee that there's not going to be some little some board I think if you're a Contracting Authority now you'll be a Contracting Authority if you're utility now you'll be a utility but I think there could be some borderline questions one thing just to note especially if you're a utility is you're now a contraction Authority because the term Contracting Authority is used as a catch-all to cover public authorities utilities and public undertakings we just have to look for the co-abouts for utility there are some specific exclusions for the devolved Scottish authorities because Scotland wants to retain the option of going back into the EU so they're going to change the procurement law too much and there are some specific exclusions for secure for Security Services like gchq which we didn't have before Financial thresholds that's all in there and they're the same as before um but um obviously with the power to change them over time um carrying on with scope exemptions again generally consistent with the current rules there are some different nuances I've just highlighted a few points here which may or may not be of interest but the uh so-called vertical and horizontal agreement so contracts between Contracting authorities and entities which they control or where they act in cooperation with other authorities they're called horizontal Arrangements if you're familiar with procurement sort of law you'll know about the so-called Tech owl companies and Tech out cases and Hamburg waste case involving cooperations between authorities essentially um those have been kind of maintained as far as I can see without too much change very similar ability for authorities to enter into contracts with entities they control as long as those entities don't exercise to too much of their activities outside the scope of the relationship with their parent Authority land of buildings uh again if you're involved in the construction or the lat sort of the property Development Area this isn't hot difficult topic when is a when is a a contract a public works contract and when is it an exempt land agreement again the bill contains exactly the same or less exactly the same exemption for lab agreements that you see in the current rules but we're going to lose all the EU case law which underpinned the concept of a public works contract so there are some likely I think to be some difficult questions about what is the boundary between an exempt land agreement and a public works contract there's some simplification of the provisions for exemption defense and Security Contracts which is exceptionally complicated under the current rules and a broad power to exempt on the grounds of National Security which wasn't there always was a power to exempt on the grounds of National Security but the government my my experience was always rather wary of exercising it I think that that's something which we might see being exempt being exercised more in the future special casual thinking sort of maybe sensitive technology contracts things like that foreign so that's very quickly on exemptions um principles and objectives this is going to get gets quite interesting so first of all they say covered procurement which means above threshold procurement must be conducted only in ance with the ACT I think that's quite helpful to sort of suggest it does imply it means that if this is the complete code for for procurement above the threshold and the billing corporates principles so we have principles in the based on EU principles of you know non-discrimination transparency equal treatment proportionality all those things which it says in the current regulations authorities have to try and achieve but um this is what the bill says about the principles Contracting authorities and remembering that includes utilities must have regard to the importance of delivering value for money maximizing public benefit transparency and sharing information with integrity now you can immediately see that that's a sort of I think a potential for some some difficulty because at the moment authorities have duties to do things they don't have a duty to have regard to things and um I think there is some thought that actually it's you know this is a potentially a downgrading I think particularly of transparency and sharing information if they only have to have regard to the importance of it rather than actually achieving it and it's also rather odd to say have regard to the importance of delivering value for money because surely that's all you have regard to anyway I mean it's a pretty important all these things are pretty important integrity I mean it's a bit odd to say I had regarded the importance of acting if with Integrity but then decided not to do it so what does this what does this mean I I think it's there's a small wording basically and I think there is some opportunity here for disputes to arise over what these actually mean in practice um the one area which is a hard Edge sort of obligation is this Contracting authorities must treat suppliers the same sort of equal treatment unless the difference between the supplies justifies a different treatment um a little gloss on that that's a sort of non-discrimination rule uh because of the government's commitments under the government procurement agreement uh there is a possibility for not treating suppliers the same in other words discriminating in favor of UK suppliers in areas that are not covered by the GPA and that is for those long Memories the equivalent of Part B services so Health social Legal Services things which are not kind of um sort of regulated services but mostly that non-discrimination equal treatment rule will apply um an amendment which was recently introduced in the house of laws authorities must have regard to smes barriers to participation and consider whether such barriers can be removed this is Again part of a policy to encourage smes smaller businesses to have access to procurement there are the usual Provisions where I haven't really touched on them thinking about lots for example pre-market engagement things which would help smes and Contracting authorities but not private utilities but Public Utilities must have regard to the National procurement policy statement uh which may be published from time to time by the government and I think you may again be familiar with the fact that we already have a national public procurement policy statement but that's again enshrined in the legislation and the government has to think about all sorts of good things promoting the public good value for money transparency Integrity all that stuff has to be thought about and then reflected in a procurement policy statement so that's the sort of overarching principles and objectives I think quite a lot of similarity with what we've got but as I said some subtle legal differences which might sort of play out in sort of perhaps unexpected ways over time so moving into some more of the the detail award procedures at the moment there are six award procedures in the procurement regulations at least in the public contract regulations there's the open procedure the restricted competitive dialogue competitive negotiated Innovation partnership I've probably forgotten one I thought they were six um uh and it's all down to two so effectively an open procedure which is a single stage tending procedure and then something called a competitive flexible procedure and the competitive flexible procedure effectively doesn't really say anything about what it involves it basically says you can do you can design a procedure which meets whatever needs of particular procurement which is fine in a sense but to my mind that certainly the Technologies regulations and even more so the utility regulations don't really tell you a huge amount about how to run a procedure they say certain things have to happen but that but they but they but they um but they give they give some guidance about what happens at the beginning and the end um but in this world I think it's going to be really a question of authorities and utilities basically building on good procurement practice that already exists um and coming up with um coming up with flexible procedures and bearing in mind you have to maintain equal treatment that are transparency obligations so all those things which ensure in a sense or ensure that uh you know criteria properly developed and disclosed and bids are evaluated in a fair way I mean all that is baked into the bill just doesn't say so in terms of how the procedures are run uh what was called a contract notice will be called a tender notice um the bill doesn't say much if anything about what that's supposed to contain must contain sufficient information to allow suppliers to prepare a tender but the detailed content is to be specified in regulations and that's the feature of the bill quite a lot of this detailed stuff which is important is to be decided in regulations to be specified by the government um again as you'd expect there are provisions on conditions of participation selection criteria um much slimmed down had to be a proportionate means of ensuring suppliers have the legal and financial capacity or the technical ability to perform the contract but if you're familiar with the current rules you know these long lists of kinds of information that you can ask bidders for but that's all that's all gone um the tendering periods there are some time periods uh for waiting for tenant responses to notices and Pretenders they are similar to the current I haven't gone into the detail of those um and they are based on what's in the government procurement agreement um kind of important change of language from the meat to the mat the current rules require tenders to be awarded on the basis of the most economically advantageous tender the bill again reflecting the GPA refers to the most advantageous tender and the idea is that authorities can the intention is to create greater scope for authorities to move away from very purely price based lowest cost tendering doesn't exclude that but it it's a sort of an encouragement to to think that it's not just about the money it's also about other things however um the award criteria in I think very similar terms to currently must still relate to the subject matter the contract so you can't have completely out of the Off the Wall award criteria they've got to be measurable and specific and clear mustn't break the rules on technical specifications and be proportionate so very similar I think to the cover the current the current position but with this sort of overlay of uh it doesn't have to be quite so economic um one thing that you won't necessarily notice if you read the bill uh just as it is because it's not in there at all because there's no Express requirement for the evaluation of the mat to be sailing from the point of view of the Contracting Authority the idea of that again is to allow authorities to take into account wider considerations than their own as it were particular interest and part of this um is is to allow greater scope for the use of Social and environmental criteria um although the current rules already allowed requires a lot of social environmental criteria I mean I was at a massive event a couple of weeks last last week on sustainable procurement which is a huge number of people talking about how to do sustainable public and private sector um they're already quite extensive rules under the current the current Arrangements there's um I mean there was a there was a procurement policy notice in 2020 which requires as many of you may know social value to be taken into account and central government procurements with a 10 waiting um and this rather complicated social valued model that the government's created so it's all you know it's all there already so is it actually going to allow for greater scope of social environmental criteria maybe but we've already got quite a lot of that already so what is the mat uh is the tender that the Contracting Authority considers and I don't really understand this satisfies its requirements and best satisfies the award criteria when assessed by reference to their methodology I know I don't really understand how something can satisfy your requirements well I suppose maybe it means that it's sort of minimum requirements and and um and then best satisfies the reward criteria but it doesn't phrase it in terms of minimum requirements it just talks about requirements anyway that's that's the the mat um whizzing on to technical specifications again not much change here substantively similar but but heavily slimmed down um again there's a preference for performance performance or functional characteristics in technical specifications over particular designs or models um and again in Fairly similar form to the current rules the UK stands can be referred to but only if there's no internationally recognized standard and equivalent standards from other states are allowed so again I don't think there's a huge amount of difference on technical specifications um so moving on to my next topic uh supplier exclusion and Department I think this is a big area of change in the in the bill so the government's taking on opportunity to do a wide refresh of the rules of supplier exclusion this pretty much came up between the green paper and the white paper I think the responses to the green paper indicated that there was quite a lot of uncertainty as to how the rules on supplier exclusion applied so they sort of they've really they've really taken a a pen to this and and done a refresh so um on exclusions mandatory exclusions uh we've got rationalized and expanded list of offenses leading to mandatory exclusion um I've kind of listed listed them on that slide they're all very bad things um but um the list that we had previously was a bit incoherent and didn't cover some things I think one of the things that um struck me uh both on the uh on particularly on the ex exclusion side as they've added in some competition infringements so cartel offense well that's pretty rare I can't tell offense but cartel finds if you've been fined for a cartel in UK or abroad that triggers a mandatory exclusion there are also mandatory exclusions for failure to provide information about exclusion grounds and um and there's acting improperly in relation to a public contract gaining an unfair Advantage where exclusion is the only way to remedy that unfair Advantage so they've kind of toughened up the rules on improper Behavior yes there's normally a five-year limit um there's some there is some generally there's a 5V limit some things have a three-year limit um and um some of it's the same directory will be retrospective and some of it will only apply and comes into Force I think if it's in relation to offenses committed it will only be offenses prospectively um but it is quite a it is it is quite a toughening up I think of the mandatory exclusion list and I think the inclusion of cartel finds I'll come on to another Factor about that and in terms of where you have sort of international groups I'm sorry uh well it actually improperly means trying to secure an unfair Advantage so there's a test of gaining an unfair Advantage so if you act in properly but don't gain an unfair Advantage you can't be excluded so coming on to if I just flick on to uh excludable I discretionary exclusion so what they what they've said is if you look at the sort of the second last line there acting improperly in relation to the world of a contract there by gaining an unfair Advantage is a ground of discretionary exclusion but they would then they would then have to sort of investigate that with the supplier and if they think that that can't be remedied otherwise other than by exclusion than it but as it were flips over into mandatory exclusion but they don't really explain what gaining an unfair advantage actually is I think um uh you know trying to get information improperly as it were about a procurement um through existing relationships I think that's probably what they had in mind um but it's also quite a tricky test possibly for authorities to apply because they do have to make a judgment over whether an unfair Advantage has been gained and one of the questions um that looks good what's that coming on today um so most grounds apply where a connected person is also guilty of the offense or misconduct so that includes the ultimate beneficial owners directors parent subsidiaries and it's International so going back to uh some of these breaches we've got I remember thinking of things like competition breaches if you have a UK subsidiary and you have a parent or a sister company that's been fine saved by the European commission for engaging in a cartel within the relevant time period potentially that's an exclusion circumstance so you know some of the I think some of these um uh some of these tests for exclusion and debarment are going to be I think quite suppliers are going to have to look quite carefully at their about what's going on in their corporate group and make sure any sort of potential grounds for exclusion have been identified um so these are discretionary grants again many of the same graphs like insolvency and so on um but they've added serious labor misconduct environmental offenses expanded the scope for exclusion on the grounds of Prior pool performance this is an Old Government Chestnut and um so breach of a prior public contract leading determination poor performance where the supply has been given an opportunity to remedy and it hasn't and also applies to equivalent contracts outside the UK as I mentioned Norm cartel so in this case non-cartel competition infringements so that could be an abuse of a dominant position it could be another another type of competition infringement and again acting improperly in relation to the reward of a public contract um and also I just sort of stuck on the bottom there threat to National Security which is again a Hot Topic in government at the moment um National Security exclusions on the ground of National Security have been pretty rare in my experience and under the EU rules it was always possible but sort of I think felt to be difficult and now there's a much broader scope for exclusions on the ground and National Security so um as I say generally it's a five-year time limit you need to check in relation to each offense whether it's a five-year-old or three year generally five year it applies to equivalent defenses and misconduct overseas and as I was saying it's um connected persons fences by connected persons are also called but we still write suppliers must be given a reasonable opportunity to make representations as to how they've remedied the um whatever the offenses or the misconduct and lastly the government's entitled to maintain a central debarment list of suppliers who've been excluded um there are obviously rights to appeal that if you're threatened with or actually put on a development list but this is a significant toughening up I think of the the rules on supplier exclusion anti-barment and I think will need to be looked at very carefully both by authorities and utilities and and by suppliers um I'm sorry are there any more questions on that um lots of contracts have been won by dodgy companies such a movement to um I I think I think there's um that's a good question I mean most of the problems with government contracts are about poor performance and actually you know um expanding scope for exclusion for poor performance but that's only in the discretionary side just because someone's performed poorly once doesn't mean that they're sort of bad forever excuse me so as far as Central department is concerned yeah it is a good question I I'm really not aware of you know people people you know bidding for contracts where they should have been excluded but were not able to be excluded um historical frustration for many years ministers say you know why can't we kick out this what the I.T firm and failed to build this new system yes they're bidding for our new contracts and telling me they're winning those yes what I can't remember what I can't remember when I'll have to check now looking at the bill is uh whether the department list applies if it's just a poor performance issue or whether it's more of a sort of bad conduct issue um yeah no okay so oh thanks son if you look at something like that so no so that is right so so there's first of all there's got to be an investigation and um the minister has to be satisfied that the supplier is an excluded by mandatory excluded Supply All In excludable Supply yeah so yes I mean I think it is it is aimed it is aimed at that sort of historic you know grumpiness about sort of the same old people performing badly rightly or wrongly whether that's true or not but um evidence not really I don't think I mean obviously for a development there has to be a proper investigation I mean it's a pretty serious matter so there would have to be a proper investigation of it evidence would have to be taken into account that the right of appeal um I think the um so the bill says Contracting Authority may have regard to evidence that the supplier has taken the circumstances seriously steps that the supplier Associated personal connected person has taken to prevent them occurring again commitments or provision of information to allow verification or monitoring of the steps the time and any other evidence so sort of kind of not rather not very surprising list of things that you might sort of expect to be taken into account and anything else um Nick yes sorry um perhaps a bit controversial but the sense I'm getting here to be corrected is that this feels quite fully quite a watering dying compared to what we have quite subject to interpretation am I on the wrong track you know um I don't maybe I've I didn't mean to suggest that did you mean specifically in relation to supply Department no no in in general or to the current uh I think there's some of that I think there's some of you know they they've simplified but in simplifying they've actually removed quite a lot of sort of Fairly familiar language which we are sort of which we sort of knew how it worked so we're left with a kind of questions of well how is this supposed to work and then of course quite a lot of things get kicked off into regulations which we hadn't seen yet you know what the nurses are going to contain um we don't know um and and I think there's quite a lot of re Reinventing probably unnecessary Reinventing of the language which is just going to leave room for room for more debates and then we don't have any EU case law to rely on to interpret it so I think there is an element of that I think on this front on supplier exclusion it's sort of Fairly clear is they've actually clarified it in in important ways but you know we already had some quite strong rules on supplier exclusion it's just that they weren't necessarily applied as vigorously as the government would have liked perhaps so one more question yeah sorry um just on the National Association yeah it's been an attempt to align the definition of national security in this bill with other definitions of natural skills Association you mean the National Security and investment for example yeah yeah I mean first of all they didn't Define National Security so National Security is is what it is what the minister thinks it is at the time but are these interesting that National Security is is politically carved out both in terms of exemptions and in terms of exclusion because it was it was it was always my impression was and occasions when we've looked at cases involving National Security or defense issues that you looked if you looked at the European treaties it says National Security is within the exclusive scope of power of member states so in theory you know member states could say it's National Security sorry treaties don't apply but the government but my experience was always really reluctant to do that because ultimately you could get challenged before the ecj um admittedly with a sort of very wide margin of appreciation now there's none of that so you've basically got these broad ability to exclude contracts and suppliers on the grounds of National Security and who's really going to challenge it you know the government says sorry it's not security I think there is going to be more scope for that but I haven't really aligned the definition as such because they don't want to Define what national security media uh Frameworks everybody's favorite topic uh Frameworks um more leeway for Frameworks for longer than four years uh if the nature of the goods and services justify it at the moment that's allowed for more than four years if it's exceptional circumstances um I've seen lots of Frameworks that are more than four years and people have found exceptional circumstances so I'm not sure that's going to make a massive difference uh defense and security and public sector utilities the maximum term is eight years uh Frameworks um they've simplified The Mechanics for calling off contracts I think uh competitors selection must be used unless the framework sets out the core terms of the call officer at the moment the rules say if the framework sets out all the terms of the call off contract you can do a direct award under the framework now it's talking about the call terms I don't think that's a massive difference in practice because in practice many Frameworks do not set out all the terms and they still allow direct Awards and it probably does set out the core terms um an important perhaps change is the introduction of open Frameworks where suppliers can join during the term uh which have a maximum term of eight years for a multi-supply framework and four years for a single supplier framework and there have to it has to be a couple of opportunities for new suppliers to join during the test I I have to say I find this bit of the draft can be extremely complicated to understand but I think that is the intention no no this is this is this is a new thing coming on to the DPS replacement so yeah so framework's going to be I think there's going to be more of the more flexibility um longer terms uh open Frameworks if anyone can understand what they've written in the bill uh Dynamic markets that's the DPS Dynamic purchasing system plus as they called it uh so it's an evolution of a dynamic purchasing system um applicable to any goods or services not just those that are commonly purchased as it says in the current regulations um suppliers must be allowed to apply throughout the term uh of the uh of the market and uh compatibility of the competitive tendering procedures other than open procedures May provide for the exclusion of suppliers who are not members of a particular Dynamic Market in other words it's like a in the utility sector you have qualification systems I think it's a bit like a utilities qualification system you'll sort of pre-qualified through the dynamic market and then the other the the tender can be limited to those suppliers uh for utilities um they can they don't have to publish a tender notice they can just send a notice to members of the market instead which I think is similar to the position for qualification systems under the current utilities rules so essentially what we have is a sort of alignment of the public sector with the utilities rules in relation to to qualification systems so I suspect this might become quite a big thing when the bill comes an act uh sort of rattling on Direct award uh again not massive change similar narrow grounds to the current rules um award to a single supplier for example for reasons of IPR or technical reasons where there are no reasonable alternatives very important sometimes in the Pharma sector for Branded medicines but also elsewhere extreme and unavoidable urgency all those things are still there but there are some new direct toward the grounds for contracts that are necessary to protect human animal or plant life or necessary to protect public order or safety which is the covid carve out um so government's giving itself the power sort of specified regulations to exempt contracts if we have another pandemic or significant uh event like that um user Choice contracts in the context of social care uh Services where it's a matter of individual Choice they're carved out as well and uh certain contracts in the fields of defense and security really important change last point on this slide as many of you may know at the moment if you make a direct award without competition you have the option to put up a so-called voluntary exante transparency notice which sets out your reasonings for why you're doing that and that and then you apply a stance to a period and that then protects that contract from being declared ineffective if it turns out that the justification was invalid um that's we're going to become mandatory so transpatchable I think either certainly a transparency note is possibly also a contractable notice uh understands to a period before making a direct award so that's a sort of an additional bit of you know regulation that will apply in the case of direct towards and not an option anymore um transparency so the green paper rather well hopefully promised embedding transparency by default through the commercial life cycle from planning through procurement contract Award performance and completion um uh what we have in the bill on the other hand I've already talked about the slight downgrading of transparency as an objective we have lots of new notice and publication requirements um there's a so-called tell us one supplier registration service and then a centralized digital platform I'm not going to talk really about those last two points but I will talk a bit about some some notices now go on a bit about this um I'll try not to notices got three slides on notices and I'm not going to go through every single one but just to illustrate that there are quite a lot of notices so pre-tender notices we've got planned procurement notice which I think is a bit like a pin optional preliminary Market engagement natives and then pipeline notice sort of does what it says on the tin where I say well it's where it's that that's for where an authority expects to spend more than 100 million in the coming Financial year it's got to set out what its pipeline is a tender notice that's gonna that's the contract notice that's the the sort of the main one obviously Dynamic Market notices intending to establish a dynamic Market modifying it or ceasing to operate and then the blow threshold tend to notice I haven't talked about low threshold contracts but um there's no obligation to advertise below threshold contracts but if you do you have to use a blow tender thread blow the threshold tendon notice then we've got post-tender notices we've got a transparency notice which is where the Authority or utility is planning to do a direct award they contract award notice now those of you who are familiar with this know that a contract award notes under the current rules is what you publish after you've entered into the contract a contract award date is under the bill is what you send to bidders before you enter into a contract just to confuse everybody um then after you've entered into the contract there's the contract details notice which was a contract coordinated if that will make sense so there's a lot of scope for confusion about the names and then uh publication of contracts all contracts over five million pounds have to be published with appropriate reductions in life notices so it goes on this is the last slide on notices by the way um again uh contracts over 5 million pounds authorities have to publish key performance indicators but it doesn't apply to a whole host of things Frameworks utilities private utilities concessions and so on information about breaches and failure to perform a contract um information about compliance with payments obligations and then another important thing which I'll come on to is a contract change notice so when an authority proposes to amend a contract or modify a contract again under the current rules it's optional whether you put up a voluntary X anti-transparent notice under the bill it will be mandatory to put up a contract change notice so that is likely to bring to the surface many more contract changes which previously have gone under the radar then modifying contracts have to be published and contract termination notices so a whole host of notices and this is this is the idea of like you know getting rid of the process driven bureaucracy we now have many more notices than we had before and many more obligations to publish notices so um what do they all need to contain uh well mostly it doesn't actually say in the bill um and it's all to be specified in regulations under what is currently like section 93 it might change uh once the bill becomes an act so that's a bit of a blank page at the moment on the uh on the tenders finder tender things yeah sauce yes it is like I think a pin is used in a number of different ways isn't it sometimes you use a pin because there's only a pin you'd use a pin sometimes to say well we're going to do some pre-market engagement before going out to Tender a a planned procurement notice is saying we are going out to Tender for these contracts in the next year a preliminary Market engagement notice there's a notice which says we want to do some Market engagement to find out what the market is before we even yes yes exactly those probably should be the other way around on that slide because the preliminary Market engagement possibly precedes the planned procurements yeah I think that's quite common but I think this has separated that out so you have an extra notice to think about uh modifying public contracts such as a topic of in my experience anyway great practical importance because any contractor for any duration typically needs to be modified at some point during its term or it can modifications come up on the whole the the bill basically replicates the current set of permitted contracts modifications which those of you familiar with the terminology is regulation 72 the public contracts regulations and equivalents and the others um so uh we have the the sort of the usual the usual kinds of permitted modification they've added where a known risk materializes which is I find a slightly odd thing but again I think they're trying to think of it's sort of it's sort of like the Donald rumsfelt Known Unknown you know if a Known Unknown arises something you've kind of predicted as a possible risk but you haven't been able to provide for somehow in the contract but then uh you can modify the contract to take account of that risk I find it quite a puzzling bit of drafting and I'm not entirely sure what the policy concern behind it is but it's uh it's anyway it's a new formulated modification and again uh in the light of covid modifications necessarily to protect Health uh public order and safety um there's been some clarification and simplification of the wording but I think again some some possible traps and I'll give you an example of something on this on this subject which kind of illustrates I think some of the things I've been saying about the way that they've changed the wording in ways which doesn't seem very helpful so one of the current um one of the current rules which allows contract modification is where uh where you have Universal or partial succession into the position of the initial contractor following corporate restructuring including takeover merger acquisition insolvency of an of another economic operator it's the provision which allows you to change a contractor in a contract without going through a further tender because there's been some sort of uh asset sale business sale corporate restructuring insolvency some legitimate corporate activity which has led to the need to change it change change the name on the contract essentially and what the government has said in the bill is it just refers to uh you can change the contract in the case of corporate restructuring or similar now to my mind corporate restructuring or similar doesn't necessarily include an insolvency it doesn't necessarily include a merger um it could be a much narrower of a test but for some reason they've chosen not to they've not to not to adopt the wording that we have in the current regulations I don't understand I don't understand that but that's fairly typical a typical example of the way they just somehow they've changed the wording to make it simpler but perhaps possibly they've lost something along the way um more interestingly perhaps non-substantial modifications this I think is an important important bit of the bill so an important question that we come across a lot is if a contract is being modified is that a substantial modification and there are there are three tests there are tests does the does the uh does the modification would it have affect the procurement in some way would it shift the economic balance in favor of the contractor uh would it considerably increase the scope or would it result in a overall different contract and that's been sort of I think improved and changed a bit so first of all they've said an increase or decrease of less than 10 percent of the contract term is a non-substantial modification that I think is going to have a really you know if you've got a 20-year contract uh you can extend it for two years without being considered to be a a substantial modification they've dropped the requirement to show the modification but have had an impact on the original procurement which is I think helpful because if anybody's come across that that was a difficult test to apply and they've also added the word material in relation to economic balance so any change in the economic parts of the contract has to be a material one um that was probably implicit in what we have at the moment but it wasn't expressed and as I said a contract change notice must be published before making a modification which should bring to the surface many more contract modifications than previously was the case um okay coming to the Enterprise any sorry I've been rattling through that a bit quickly has anyone got any kind of questions or observations on any of the last bits um I just want to say sort of a few words about I've got the last few things some light touch contracts a very brief word about NHS procurement and then a bit about private utilities so um under the current rules we have something called the light touch regime for uh Health social other kinds of services where it's thought that there is um less likely to be interest from suppliers outside in the case of uh the EU from outside the outside the the the country in question and the government had proposed to get rid of the light touch regime entirely but they brought that back in uh following the comments in the on the consultation on the green paper um they haven't said exactly what's going to be covered by the so-called light touch new light touch regime or light touch contracts because they're going to set out regulations um uh what those are have in regard to where the suppliers outside the UK like to want the contracts whether the services are supplied for the benefit of individuals or communities and where proximity between the supply and the recipient is necessary or expedient for the effective and efficient supply of the services so I mean that sort of broadly speaking describes what we have currently in the light touch regime but they haven't kind of come up with a list of a list of services so what's the what's the difference for light touch contracts um the whole list of things here I mean more flexibility to modify them that can be reserved there's no minimum periods they mean limit on duration no obligation to apply a standstill I've already mentioned uh various limitations or the notice provisions and so on uh which which applies to light touch contracts so a lower level of Regulation I mean the only way to find it out is to get a PDF of the bill and put light touch in the search thing and then go through all the pieces where it says this does not apply to a light touch contract this does not apply um but that but that's but that's uh that's the category of contracts which is yet to be defined which has some uh has some lower levels of Regulation um very very briefly on NHS program because it doesn't say very much about NHS at all in the bill in principle NHS procurement whether that's Health Care Services or medicines of different kinds or supplies of medical devices that's all in principle covered by the bill um but the government has the power to disapply it in the case of contracts covered by the health procurement rules so we don't really know at this stage how much NHS procurement will be covered by its own special regime now there's some people are interested in that there's any special regime or whether it will be covered by the by the general regime um I would suspect that uh for a lot of a lot of a lot of cases the um Health Services type procurement probably will be put into its own special regime and health supplies of different kinds will probably be kept in the main regime but that's my my supposition on that thank you so lastly just to wrap up this sort of op before the break private utilities I'm not sure we have any private utilities here but again they've the the government was there was some concern expressed during the consultation on the green paper that by amalgamating all the regulations utilities which had a lower level of Regulation before would be sort of re High have a higher regulation level of Regulation under the bill so again there's a whole load of carve out for private utilities which I won't go through in detail but they obviously don't have to have regard to the National procurement policy um maximum term reduce notice and transparency no mandatory standstill they can allow all those Crooks and criminals to participate if they want to and uh they're not subject to procurement investigations which people talk about after the coffee break so uh it's now bang on half past 11. so uh does anyone else have any kind of questions or burning things to ask or a quick one maybe um this hasn't been any discussion or commentary sort of in the about what might happen in the wake of the bill um to existing approaches to Government Contracting sort of you know will there be changes to the approach to gcloud or some normal services do we expect kind of major refresh I don't I don't think I don't think so I mean I think it's a sort of a resetting of the sort of underpinning rules um but I I I don't think that you know procurement practice on the ground is going to change massively and that's partly a function of the fact that the complicated rules don't really say much about how you run a procurement they say certain things have to happen but all a lot of the detail of how humans Iran is all a matter of a procurement practice and in a sense the Practical implementation of equal treatment how do we ensure equal treatment well we have to do this that and the other and that's the sort of thing that's developed over time um I I think you know things like the gcloud are already were a little bit at the boundaries shall we say of what was permissible potentially under the Frameworks I think that might be a little bit easier to get in under the open framework rules or the dynamic Market rules but they'll still do the same thing they'll just have a slightly different legal cover for it um I think overall that will um that will be uh quite similar what I think I I'm one of the things I'm a little bit concerned about is transparency I think there's a lot of um as I said there's a lot of notices but we don't know what they're going to contain and we don't have this kind of thread of transparency running through the really sort of hard Edge thread of transparency that we have in the current rules which basically say authorities have to you know disclose everything about their how they're going to run tenders and the bill is a bit kind of vague and what is your point about about what has to be disclosed I'm pretty sure that it's fairly unlikely that most well-advised authorities will do kind of silly things like not disclose their criteria or you know but I don't I don't exclude the possibility that people might try to find ways of doing that because the bill is muddied the waters in that respect but as I said I don't I don't think no other thing I don't think there's likely to be massive changes in the way procurements actually run sorry did you have this and I mean commercial confidentiality still comes in fact yes it does yes yes so all this stuff about you know publication of contracts for example you know that's all subject to obviously commercial confidentiality is those redactions but then we have publication of key performance indicators for bigger contracts so those will have to be published but then they'll also have to publish information about failure to perform and that I think is going to be interesting on the commercial confidentiality Zone when you say I can't publish some kpis because they're commercial confidential well no well I don't think the bill says that you can't publish the kpis because they're conversion so I think there are some interesting questions about that um and there is a sort of a certain amount of naming and shaming that's expected in the bill so um obviously things like pricing information that sort of information is to be commercially sensitive but the fact that someone has not performed a contract I think is likely to be liable to be made public so that's going to drive meaningless Taking Lives yes I think yes yes yeah it's probably right anything sense yeah when we say okay guys that we mean things um I'm not sure if well that's a good question let me just have a look at that I just need any intentions yeah the company that delivers passports yeah it doesn't it doesn't it doesn't say it yeah it doesn't say very much it says before entering into a public contract with an estimated value of more than five million pounds a Contracting Authority must set and published at least three key performance indicators in respect of the contract um and then but that doesn't apply if the authority considers that the supplier's performance could not appropriately be assessed by reference to key performance indicators whatever that means and then um uh it says the key performance indicator is a fact or measure against which they supplies performance of a contract can be assessed during the life cycle of the contract so it's it's very open but yes I mean that that that could be a it could be an area where sort of very Bland kpis are put in place to try and try and minimize any kind of commercial sensitivity already chaos taking off work you have to send out another notice because that would be not simplifying things set up for yeah yeah there's quite a bit of there's quite a bit of that I'll have to check that specific point but but yes I mean you know there are uh payment terms and the notes setting out authorities compliance with payment terms um it doesn't apply to private utilities but it would apply to public undertake [Laughter] how will the bill impact procurement litigation which sounds worryingly to me like I'm required to make some predictions which having spent 20 pounds of my kids inheritance betting on Belgium to win the World Cups of value on what I'm about to say in answering these questions um but to the extent we can we will have a look at you know effectively current regime and then what the new version looks like and see if it says which there is change if any so I don't know if anyone in the rooms had the pleasure of dealing with procurement litigation before um but if you have I suspect you'll have a view on its limitations and some of the unique features of it um and the talk that I attended quite recently one of our our favorite Kings Council for participation she described the current regime as unpredictable expensive and potentially pointless which as a security litigator is not something I really want to put on my business accounts but um you know that that is the perception of the current regime and so what what I expect the drafts people in the cabin office and elsewhere when they went to set out to look at the bit all litigation would have been one of their focus areas because particularly for challenging uh parties our I.E unsuccessful bidders Etc but it has been a lot of frustration that it doesn't deliver and I'm sure equally only on the government side there are plenty of frustrations as well about how it works so um you know the current regime have it had its problems that everyone everyone acknowledged the what's the experts in the new bill uh you know it's hard to it's hard to say because one of the things that's sort of been notable about the process is that lots of ideas have been proposed and they're not really followed through so there's lots of ideas some of which I've listed there um you know which are effectively have been in the green paper stage and have not made it through to the bill in particular I need to point out the sort of proposed tribunal system which I think a lot of uh you know professionals at least were interested in because that's a you know a specialist mechanism to resolve disputes ideally a bit a bit cheaper and a bit quicker than the court process and you know having raised that possibility and got a lot of lawyers excited about a new place to bring claims that's now gone the flip has now been on to effective and promising form of the civil procedure rules which in case you don't know that's basically the court rules that applies to all types of litigations not just procurement disputes and so the idea that they've sort of gone from the one hand from a specialist traveling or now into you know just effectively promising to amend the court rules generally sort of suggests there might have been a bit of a fudge here or a loss of a loss of resolve or bottle and I think the overall conclusion uh spoiler alert is that the essential Fabrics of the of the regime appear to have been preserved of student Bill and so you know the change may not be a society perhaps people well the thinking it might be um the sort of launch path for investigation there's a starting position if you if you realize the award notice and then the accompanying the standstill period for you know in the event of a challenge the current regime is the one that's in red age 96 of the PCR or the equivalent and that effectively requires you know an award decision notifications to be given including the crust and you know information enabling you know understand the decision now one thing you know Nick and I have noticed about that regime having politicated under it for the last five years or so is the there is no prescribed form for that notice and they come in all shapes and sizes and uh you know unsurprisingly some people are better at drafting them than others and so you know you get a mixture of All Sorts in that in the regime currently and uh you know the other key point to this about the communities is this tense daily stands still period which you know isn't limited to working days and so depending on and notification comes out can lead to some long weekends or the back holidays so um but that's the current closing which you made fondly no of or not um and sort of a sign of how difficult this issue is and I guess how important it is as to how the notification regime and vote counting Starship work it is shown by the fact that during the bills process that you know the goal posts have moved along along the way and the government's position has effectively shifted and you know because it's reasonable to conclude that they've got it slightly and it's it's in the too difficult box really um you sort of started off with a green paper position trying to really pair back the system remove the need to run through the individual debrief letters and now we've gone it's almost full circle into a position where there must be the new style of a walk-on system that was talking about published before entering into the contract and then a provision of evaluation documents is what the you know the white paper in 2021 said uh you know to basically replace the individual people's letters and instead provide the evaluation of documents query what valuation documents means being consumed and that includes quite a bit of information about precisely what the process went on and you came out of it but in fact under the bill we've sort of slightly moved again and now we've got a position where you must publish a contractor will notice before what the contract is awarded but then before that step you also have to um you know provide suppliers who submitted you know the qualified tender with an assessment summary but not the evaluation documents so effectively a summary of you know what what the decision taken was against what information Etc but with as it stands at the moment not a great deal of prescription as to what it's supposed to be within and without that regime and uh you know at the moment there is no ability for the government to sort of specify more detail what that involves so um apparently you have to be a um you know mercenary litigator in the fields to look at that and think this is going to be right if you haven't got and you've got an obligation statutory obligation to provide you an assessment summary but no proper guidance as to what that involves then you know clearly you're well remunerated lawyers will have still dialing about it so that is you know something that jumps out and then the change in the standstill reflecting obviously they look like balance that we all enjoy Post cover that have now changed it to eight working days instead of 10 normal days so depending on whether it falls in a particular month or what day they serve and I guess that may buy an extra day but the reality is that I think that bidders are going to be in a similar position um should say oh I'm not a current regime they're going to be short on time and short on information to make the decision about whether a challenge should be made or not um I mean you guys probably know better than me but see it all seems to me on my side of the fence that unsuccessful bidders really want to have you know sufficient information and you know understanding to make a decision on whether a challenge is relevant or you know worth considering at all they need to under you know to understand the basis of the decision made I agree or disagree with it but you at least need to be in that position to understand that I think one of the things that Nick and I come across from these cases come in is that far too often it is our Gene you know for with all the best intentions I'm not in a position to understand the decision made because the information provided at the limited time and The Limited disclosure allegations Etc so um at the moment there's no suggestion that the new regime is going to cure a lot of those ills and we're going to be I think in a similar scramble trying to understand what's happened how to do um the sort of the the next thing to consider is that the issue of automatic suspension on the award of the contract so this is the injunctive effect on entering into a contract in the event of a challenge and it's effectively a losing that there are challenges biggest you know weapons and abilities to effectively require or strain The Authority from rewarding the contract um and the current regime effectively works on the basis of any the usual position for injunctions in law which you may or may not know but is effectively a test about whether damages are an adequate remedy for a party that's been wronged arguing whether money can compensate or they've lost rather than something intangible that can only ever be constrained by you know stopping what's going to happen and there's been a very interesting recent case on this issue under the current regime in relation to the lottery contract so Camelot against the gambling commission and I mean if ever there's a lawyer for challenges you want to sort of Paradigm case of a unique contract that couldn't be comfortable for running the lottery for 28 years as your sole brand with a you know all of all of the uniqueness that attaches to that contract you would have thought that if ever there is going to be a justification of this mentioned that is it and but they were actually unsuccessful suspension on that case um so because of a effectively a much more rudimentary balancing of Damages and also a big public interest to push on or the lottery obviously you know supplies provides for a lot of good courses and moves effectively an open-ended risk not maintaining uh or maintaining the suspension so you know the current regime I think has effectively been tilted very much in favor of the you know the government selling the calling or the the winning bidder cyberpoint in the automatic suspension although it tends to get in place it also tends to be lifted quite quickly and so whether the new regime can change that is quite it's going to be quite important for losing bidders and you know I think here there is there does look to be a move for change um but they've you know the bill expressly reframes the test away from this kind of uh damages position into a three-stage test involving public interest the interest of suppliers and any other matters that the court considers appropriate and the first one of those is probably the most interesting that's the public interest so here you have an obvious public interest in making sure the procure properly that was always on how the systems observe and then equally you have a you know a true public interest in making sure the contracts is not completely delay