Procurement Pulse UK – March 2023Global Government Contracting: Insight Series
Global Government Contracting: Insight Series
This is the Procurement Pulse UK, DLA Piper’s bulletin for clients with an interest in developments in UK public procurement law. In this issue we report on recent case-law, policy and legislative developments including an update on the UK Government’s Procurement Bill and our new Global Government Contracting Online platform. We also invite you to explore Global Government Contracting. Global Government Contracting supports businesses to source and win new government contracting opportunities, and supports governments, and other regulated entities, to do business with the private sector. It features country-specific information, procurement articles, webinars and spotlight interviews.
Recent Court Judgments
English Court Decides That Breach of Procurement Rules Serous Enough to Merit Damages
Bromcom Computers plc v United Learning Trust
The English High Court has held that errors made by United Learning Trust in assessing bids for a cloud-based information system for several schools were serious enough to justify an award in damages to Bromcom, an unsuccessful bidder. A hearing on quantum of damages has now been fixed.
The errors included the following:
- Contrary to the ITT the defendant scored the bidders by averaging out the evaluators’ individual scores instead of undertaking a moderation process to agree a reasoned consensual score.
- The defendant incorrectly added costs to Bromcom’s bid during the evaluation process to reflect the cost of establishing a link for data transfer, which was not added to the winning bidder’s tender as the winning bidder (the incumbent) had already established the link.
- The defendant allowed the successful bidder to submit its bid using a drop-box, rather than by email, to which it continued to have access post-submission. This could in theory at least have allowed the successful bidder to alter their submission post the bid deadline.
The case serves as a reminder to contracting authorities of the importance of closely following the procedures set out in the ITT, considering all bids carefully and even-handedly and ensuring that the fundamental principles of transparency, proportionality and equal treatment are upheld in any procurement process.
Policy, Guidance and Other Developments
UK: Procurement Bill Progress
Following its passage through the House of Lords the Procurement Bill has now had its first and second reading in the House of Commons and the Public Bill Committee has scrutinised it and reported with amendments. You can view the Hansard records of the Committee debates here. The Bill is now due to have its report stage and third reading in the House of Commons on a date to be announced. The Bill is expected to gain Royal Assent in the Spring. Thereafter work will begin on the secondary legislation required to implement the Bill. The UK Government currently suggest that the new procurement regime will not commence before Spring 2024.
Various publications relating to the Bill have been issued including:
- A House of Commons Library Research Briefing.
- A Cabinet Office ECHR Memorandum on the Bill.
- Government Commercial Function Guidance on how the Bill will deliver a range of benefits for suppliers.
We have produced an article which provides an overview of the Bill on our new Global Government Contracting platform here.
UK: Public Contracts (Amendment) Regulations 2022
The Public Contracts (Amendment) Regulations 2022 came into force on 21 December 2022. The Regulations amend the thresholds for publication of contract notices and contract award notices to Contracts Finder. The thresholds are now £12,000 including VAT for central government bodies and £30,000 including VAT for sub-central government bodies, NHS Trusts and NHS Foundation Trusts.
UK: New Procurement Policy Notes
Several new procurement policy notes have been issued by the UK Government:
- PPN 03/22 updating guidance on data protection legislation. This updates and replaces PPN 02/18 and reflects changes to the data protection legal framework which impacts government procurement
- PPN 01/23 reminding in-scope organisations to publish procurement information on Contract Finder.
- PPN 02/23 providing guidance on tackling modern slavery in government supply chains.
- PPN/03/23 updating the Selection Questionnaire (SQ) and accompanying statutory guidance.
In addition, the Cabinet Office moved several old procurement policy notes to the out-of-date category. A list of the relevant notes can be found here.
Wales: Social Partnership and Public Procurement (Wales) Bill
The Social Partnership and Public Procurement (Wales) Bill seeks to provide a framework for enhancing the well-being of the Welsh people by improving public services through public partnership, promoting fair work and socially responsible public procurement. The Bill has now passed through stage 2 of the Welsh Parliament. Stage 3 consideration will take place on 7 March 2023. Further information including the stage 1 report and the Bill as amended at stage 2 are available here. A Senedd research article here provides further information on the Bill.
Global Government Contracting Online
DLA Piper has recently launched Global Government Contracting Online, a new platform which helps businesses source and win new government contracts, and assists governments, and other regulated entities, do business with the private sector. The platform contains information about how to find procurement opportunities in 75 countries across Africa, Asia-Pacific, Europe, the Americas and the Middle East, the structure and content of their procurement laws and key in-country resources and publications. We are regularly updating the platform with new countries, insight features and spotlight interviews with government representatives, development agencies and industry bodies. Forthcoming webinars include “Doing Business With the US Government” and “Doing Business With the EU Institutions”. Further details can be found on the platform here.