Public Procurement Regulations Update & Case Law

I have recently attended a webinar presented by Sue Arrowsmith who is Emerita Professor in Public Procurement at Nottingham University and here is an update based on what she said.

To start with, some clarification around the timetable for the Government’s Green Paper review of the old OJEU legislation and the amendments to the PCR (2015) regulations following consultation.

Green Paper published December 2020                                                           COMPLETE

Consultation activities around the Green Paper March 2021                       COMPLETE

Response to the consultation activities (delayed from August 2021)              COMPLETE

Drafting and enact the Bill into law                                                                   EXPECTED H1 2022

Training on the new regulations (multiple formats)                                      Throughout H2 2022

New law in force                                                                                                   2023 (not defined when)

Professor Arrowsmith also presented a number of case studies which mainly revolved around Covid related procurement activities by the Government. These may not at first sight appear to be relevant to school procurement activities and in some ways are not, but there were some key learnings and/or refresher points that came out of these which are most definitely pertinent to all of us.

One key study was around a contract awarded to Public First at the start of the pandemic – this one involved Dominic Cummings directly and received a lot of press interest at the time. The contract was awarded directly without a tender process using Regulation 32 (emergency situation). The court ruled that Mr Cummings was not guilty of “apparent bias” in the process due to him knowing two directors of Public First. However the court did rule against the government in the process as they did not have any clear and objective criteria to show why they had selected Public First and nor did they have a clear audit trail of what decisions were made when, by whom and the reason why.

Learning Point – document your process, make evidence based decisions and have a transparent audit trail.

The government also had their wrist slapped over their failure to publish all contract notices and redacted contracts in a timely manner during the pandemic – this also made the news. The government did have a problem here as the volume of contracts to be awarded multiplied rapidly and they didn’t have enough staff or suitable IT equipment to deal with the volume of work required. If they had declared the resource issue at the beginning there might have been some possible mitigation, but this wasn’t declared until too late.

Learning Point – if you can see a problem looming, don’t ignore it, take action and try to mitigate the issue. You have a project timetable for a reason, make sure you stick to it.

Another case involved a company tendering for a number of Lots in a road repair contract. In each Lot the bidder had identified the same resource as being used to complete the work in that Lot and this made the whole package untenable with the required timelines. However the awarding authority had given them maximum marks for each Lot and all 6 Lots were therefore awarded to that contractor. It then became apparent that the contractor could not comply and the awarding authority tried to backtrack and reduce the Lots awarded (in conjunction with the bidder) and the outcome was challenged. The ruling went against the awarding authority as they had not declared any process for resolving an issue like this and also because they had failed to analyse the bids correctly – the bidder should have received maximum marks for Lot 1 and zero marks for the other Lots due to the duplication of resource.

Learning Point – if you are running a Lotted tender make sure that you read all responses in detail and don’t ignore repetitive commitments. Also be clear in your tender documents how capacity to handle multiple Lots will be assessed.

Hopefully you have found the above of interest and can see how there is relevance from case law to your own procurement activities.

Steve Parker
Procurement Account Manager (Consultant)

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