Public Procurement Law - June 2022

This is the Procurement Pulse, DLA Piper’s bulletin for clients with an interest in developments in public procurement law. In this issue we report on recent case-law, policy and legislative developments including an update on procurement reform in the UK. 

Recent Court Judgments

In-house exemption doesn’t continue where the contracting authority ceases to control the body carrying out the contract
Comune di Lerici v Provincia di La Spezia

In this case the European Court of Justice was asked to decide whether the in-house exemption continued to apply to a contract awarded to an organisation owned by several municipalities, including the contracting authority, where the organisation carrying out the contract subsequently merged with another organisation in which the contracting authority held no capital or influence on decision making. The Court held that the in-house exemption did not continue to apply in these circumstances and a new procurement procedure was necessary.  

Policy, Guidance and Other Developments

UK Procurement Bill Update

The Procurement Bill had its second reading in the House of Lords on 25 May 2022. After the debate the Bill was sent on to a Grand Committee of the House of Lords which will begin considering the Bill, line by line, on 4 July 2022. The Second Reading Debate and the list the amendments marshalled for the Committee stage are available below along with the Government Commercial Function’s Summary Guide to the Bill: 

• Hansard: Second Reading Debate
• List of amendments for Committee
• Government Commercial Function’s Summary Guide to the Provisions of the Bill

On 13 June 2022 Scottish Ministers announced concerns about the terms of the Bill and lodged a Legislative Consent Memorandum in the Scottish Parliament recommending that MSPs refuse consent for the Bill in its current form.  The Delegated Powers and Regulatory Reform Committee of the UK Parliament has also issued a report identifying failures in the memorandum prepared to assist with its scrutiny of the Bill. Their report is available at this link.

We have produced a number of recent posts on aspects of the Procurement Bill which are available on our HM Government Blog:

• Same as it ever was? Has the Procurement Bill seized a once in a lifetime opportunity?
• Transparency, Transparency, Transparency – A summary of the changes to the transparency obligations in the Procurement Bill
• Public Procurement Reform – Procurement Bill updates

Finally, we are running several webinars over the next few months unpacking the provisions of the Bill and their practical implications. If you would like to register to attend please contact: natalie.sheen@dlapiper.com.

Wales:  Social Partnership and Public Procurement (Wales) Bill

The Welsh Government laid the Social Partnership and Public Procurement (Wales) Bill before the Senedd Cymru on 7 June 2022. Amongst other measures the Bill creates a new statutory duty on certain Welsh public bodies to undertake socially responsible public procurement, to set objectives in relation to well-being goals and to publish a procurement strategy. The general principles of the Bill will be considered in Committee which will report to the Senedd by 18 November 2022.

New Policy Notes

The Scottish and Welsh Governments have recently published procurement policy notes covering a range of matters:

• SPPN 03/2022 on taking account of climate and circular economy considerations (Scotland).
• WPPN 01/22 on contracts with suppliers from Russia and Belarus and WPPN 02/2022 on the publication of contract award notices (Wales).

Responses to the UK Government’s Consultation on the Single Source Contract Regulations Published

On 23 May 2022 the UK Government published the responses it received to its consultation on proposals for reform of the Single Source Contract Regulations.

Scottish Government Updates Guidance on the Procurement Reform (Scotland) Act 2014

On 31 May 202 the Scottish Government updated statutory guidance on the Procurement Reform (Scotland) Act 2014, to embed a new chapter on Fair Work First that reflects updates to their Fair Work and Real Living Wage policy.

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