Shoosmiths LLP
  August 30, 2023 - Milton Keynes, England

Consultation on draft regulations - Procurement Bill – Part Two
  by Shoosmiths LLP

The Government is undertaking a consultation on the secondary legislation required to implement the new public procurement regime established by the Procurement Bill.

Shoosmiths has recently provided feedback on the second stage of the consultation, relating to a draft of The Procurement (Transparency) Regulations (the “Regulations”) that cover the transparency provisions and notices that will be used by contracting authorities to fulfil their requirements under the Procurement Bill.

Consultation
Question Number

 Question  Shoosmiths Response 
 1 Pipeline Notice
To what extent do you agree or disagree that the pipeline notice, as described in the draft SI, will usefully provide advance notice to suppliers of forthcoming contracting opportunities?		 We generally agree that the pipeline notice, as described in the draft SI, would usefully provide advance notice to suppliers of forthcoming opportunities.
 2 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. Other elements that could usefully be included for suppliers is the estimated value of the contract and the likely type of contract, e.g. framework, or open or competitive flexible. It may be that the intention is that the likely type of contract would form part of the “contract subject-matter” but it is not clear from that definition.
 3 Planned Procurement Notice
To what extent do you agree or disagree that the contents of the notice described in the draft SI provide the information needed by suppliers to determine their interest in the upcoming procurement that is the subject of the notice?		 We generally agree that the planned procurement notice, as described in the draft SI, would usefully provide the information needed by suppliers to determine their interest in the upcoming procurement.
 4 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. We would suggest that the estimated value of the contract and likely type of contract, e.g. framework, or open or competitive flexible could be included. We would also suggest that information on whether the contract will be split into lots would be very useful for suppliers.
 5 Preliminary Market Engagement Notice
To what extent do you agree or disagree that the notice as set out in the draft SI delivers the policy intention of encouraging the use of preliminary market engagement in an open and transparent way?		 We generally agree that the notice as set out in the draft SI delivers the policy intention of encouraging the use of preliminary market engagement in an open and transparent way.
 6 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. Much of the information to be contained in the notice relates to forthcoming preliminary market engagement. Allowing contracting authorities to publish such a notice after preliminary market engagement has already been carried out does not encourage the use of preliminary market engagement in an open and transparent way.
 7 To what extent do you agree or disagree that private utilities should be exempted from the preliminary market engagement notice requirements in clause 17 of the Bill? We disagree that private utilities should be exempted from the preliminary market engagement notice requirements.
 8 If you wish to explain why you do not agree that private utilities should be provided with this exemption please do so. Market engagement should be encouraged for all procurements and we do not consider that private utilities should be treated differently – suppliers should still have an opportunity to contribute to preliminary market engagement.
 9 Tender Notice
To what extent do you agree or disagree that the tender
notice as set out in the draft SI enables a contracting
authority to effectively advertise and commence a
competitive procedure?		 We generally agree that the tender notices as set out in the draft SI enables a contracting authority to effectively advertise and commence a competitive procedure.
 10 If you wish to explain why you do not agree that the draft
SI reflects or delivers the policy intent described above,
please do so.		 Regulation 13(3)(i) is unclear and should be re-drafted to be clarified which contract is being referred to in “expiry of the contract” – is it an existing contract in place or the contract which is
about to be procured?
 11  Utilities Dynamic Market and Dynamic Market Notice
To what extent do you agree or disagree that the DM
notice as set out in the draft SI permits a contracting
authority to effectively create a dynamic market
(including a utilities dynamic marketplace) for the future
award of public contracts?		 We generally agree that the DM notice as set out in the draft SI permits a contracting authority to effectively create a dynamic market for the future award of public contracts.
 12 If you wish to explain why you do not agree that the draft
SI reflects or delivers the policy intent described above,
please do so.		 N/A
 13 To what extent do you agree or disagree that the QUDM
notice as set out in the draft SI permits a contracting
authority to effectively create a utilities dynamic
marketplace that maintains the effect of a qualification
system under the existing rules?		 We generally agree that the QUDM notice as set out in the draft SI permits a contracting authority to effectively create a utilities dynamic marketplace that maintains the effect of a qualification system under the existing rules.
 14 If you wish to explain why you do not agree that the draft
SI reflects or delivers the policy intent described above,
please do so.		 N/A
 15 Transparency Notice
To what extent do you agree or disagree that the transparency notice as set out in the draft SI will provide visibility of upcoming procurements to be awarded using the direct award procedure?		 We generally agree that the transparency notice as set out in the draft SI will provide visibility of upcoming procurements to be awarded using the direct award procedure.
 16 If you wish to explain why you do not agree that the draft
SI reflects or delivers the policy intent described above, please do so.		 N/A
 17

Procurement Termination Notice
To what extent do you agree or disagree that the contents of the termination notice, as set out in the draft SI, provide greater transparency about procurement processes that have not resulted in a contract?

 We generally agree that the contents of the termination notice as set out in the draft SI provide
greater transparency about procurement processes that have not resulted in a contract.
 18 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. For increased transparency we would suggest that the contracting authority is obliged to provide a reason for not awarding the contract and/or an indication of whether the contracting authority will be carrying out a re-procurement in respect of the same subject matter in the future.
 19 Assessment Summaries
To what extent do you agree or disagree that the contents of the assessment summary (along with the provision of the successful supplier’s assessment summary) will provide adequate information to suppliers so that they can reasonably understand why they did or did not win the contract while reducing the time it takes for contracting authorities to provide this information?		 We generally agree that the contents of the assessment summary as set out in the draft SI will provide adequate information to suppliers so that they can reasonably understand why they did or did not win the contract.
 20 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A
 21 Contract Award Notice
To what extent do you agree or disagree that the contract award notice as set out in the draft SI will be a suitable vehicle for alerting the market to the contracting authority’s intent to enter into a public contract and triggering the standstill period?		 We generally agree that the contract award notice as set out in the draft SI will be a suitable vehicle for alerting the market to the contracting authority’s intent to enter into a public contract and triggering the standstill period.
 22 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A
 23 To what extent do you agree or disagree that it is appropriate for private utilities to publish a reduced version of the contract award notice for contracts awarded under a framework? We disagree that it is appropriate for private utilities to publish a reduced version of the contract award notice for contracts awarded under a framework.
 24 If you wish to explain why you disagree with this approach please do so. The same transparency should be available for procurements carried out by private utilities.
 25 Contract Details Notice
To what extent do you agree or disagree that the contents of the contract details notice, as set out in the draft SI, will give the required level of transparency of the existence and substance of government contracts?		 We generally agree that the contents of the contract details notice as set out in the draft SI will give the required level of transparency of the existence and substance of government contracts.
 26 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A
 27 Payments Compliance Notice
To what extent do you agree or disagree that the payments compliance notice provides the transparency necessary to hold the public sector to account for its performance in paying suppliers on time?		 We generally agree that the payments compliance notice provides the transparency necessary to hold the public sector to account for its performance in paying suppliers on time.
 28 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A
 29 Contract Performance Notice
To what extent do you agree or disagree that the Contract Performance notice will provide adequate information about a supplier’s performance on a contract?		 We generally agree that the contract performance notice will provide adequate information about a supplier’s performance on a contract.
 30 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. It is not clear what the impact of rating performance as “Other” would have and we believe that this would lead to confusion or an ineffective notice as there are no clear consequences of such a rating.
 31 To what extent do you agree or disagree that the Contract Performance notice will provide adequate information relating to a serious breach of contract by a supplier? We generally agree that the contract performance notice will provide adequate information relating to a serious breach of contract by a supplier.
 32 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. It is not clear what would be classed as a “warning notice” in Regulation 29(6)(l)(iv)(aa). This is not terminology generally used under public contracts and so this could lead to a dispute over whether a “warning notice” has been given, and therefore whether the contracting authority has taken any steps to notify the supplier of the relevant breach as required by Regulation 29(6)(l)(iv).
 33 Contract Change Notice
To what extent do you agree or disagree that the contents of the contract change notice will provide greater transparency of the proper management of government contracts?		 We don’t think this provides greater transparency than the existing modification notice or a VEAT notice.
 34 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. To properly deliver the policy intent, greater detail should be required to be included as to exactly what is involved in the modification – the details in Regulation 30(3)(h) are insufficient to allow an interested party the ability to properly understand what is being modified.
 35 Contract Termination Notice
To what extent do you agree or disagree that the contents of the contract termination notice, as set out in the draft SI, will give greater clarity and transparency about which government contracts are still in force?		 We generally agree that the contents of the contract termination notice as set out in the draft SI will give greater clarify and transparency about which government contracts are still in force.
 36 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A
 37 Central Digital Platform
To what extent do you agree or disagree that the SI drafting provides clarity about the operation of the central digital platform?		 We generally agree that the SI drafting provides some clarity about the operation of the central government platform.
 38 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A
 39 To what extent do you agree or disagree that the workaround procedure provides a viable alternative in the event of a failure in the central digital platform? We consider that the workaround procedure is a viable alternative to some extent in the event of a failure in the central digital platform, but appears to be a short term fix and no provision is made for medium to long term issues with the central digital platform.
 40 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A 
 41 Central Digital Platform: Supplier Information
To what extent do you agree or disagree that the information required by the draft SI to be obtained via the central digital platform will save duplication and re-submission time by suppliers bidding for multiple government contracts?		 We generally agree that the information required by the draft SI to be obtained via the central digital platform will save duplication and re-submission time by suppliers bidding for multiple government contracts.
 42 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. The central digital platform should be designed so that suppliers can include all relevant information, e.g. where further information is required in relation to exclusion grounds.
 43 To what extent do you agree or disagree that use of the Central Digital Platform: Supplier Information should be mandatory during the tendering period and that, until the end of the tendering period, contracting authorities may only use the registered core supplier information submitted to the platform? Provided that the central digital platform does not preclude the supplier from providing further relevant information, then we would agree.
 44 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A
 45 Unique Identifiers
To what extent do you agree or disagree that the provisions on unique identifiers will enable tracking of procurement data?		 N/A
 46 If you wish to explain why you do not agree that the draft SI reflects or delivers the policy intent described above, please do so. N/A
 47 Transitional Provisions
To what extent do you agree or disagree with the approach to transitional arrangements set out in this consultation?		 We agree with this approach and welcome the use of prescriptive timeframes.
 48 If you wish to explain why you do not agree with the approach described above, please do so. N/A
 49 Defence Authority
To what extent do you agree or disagree that the list of defence authorities in the draft SI accurately captures the organisations that should be included within the definition?		 N/A
 50 If you wish to explain why you do not agree with the list, please do so. N/A

 




Read full article at: https://www.shoosmiths.com/insights/comment/consultation-on-draft-regulations-procurement-bill-part-two