Procurement green paper: Transition or transformation

Just before the end of 2020 the government published a green paper setting out reforms to procurement legislation post-Brexit. Procurement is the process of scoping, sourcing and purchasing goods, works or services. In the context of public services provision, procurement is just one part of the process of commissioning public services. This should include an understanding of local needs and developing an ecosystem of providers.  

The green paper

We think there are a number of issues with the scope and framing of the paper, resulting in a missed opportunity to address the flaws in public service procurement.  

• It doesn’t recognise delivering public services to people is very different to delivering any other goods, works or services, and so the procurement process should be different. With this one-size-fits-all approach, authorities start to design services to fit the procurement process rather than the other way around.  
• The paper presents Brexit as an opportunity to ‘cut red tape’, wrongly suggesting it’s the rules that prevent us from using procurement to achieve our purpose. During covid, contracting authorities were urged to use flexibility that is legal under existing EU regulations to support public service providers and respond to the pandemic. This confirms what we’ve known for a long time and what is clearly explained in The Art of Possible – the key issue with procurement is the way rules are interpreted and put into practice.

Reflections on the proposals

There are some specific proposals that could benefit charities. Yet most of these proposals don’t address the challenges charities face in procurement processes and impact that has on people using services.

Processes

The paper suggests replacing the seven routes available under the current rules, with three (flexible, open and limited). A ‘competitive flexible procedure’ would be similar to the Light Touch Regime (LTR) and would replace several other options including Innovation Partnerships.  

The LTR was introduced in 2015 to allow a more flexible approach to procuring health and social services. The paper suggests that by introducing a more flexible approach across all procurements, there is no need for LTR. While we think the LTR was underused by authorities, we think in principle is helpful to have some recognition in law or guidance that using procuring public services is different to any other procurement. We are concerned about the impact of removing Innovation Partnerships – while they have been underused, there are a number of cases where it has been well used to foster partnerships between charities and authorities. 

The paper suggests legislating for a new Dynamic Purchasing System (DPS+) that may be used for all types of procurement. A DPS is an electronic system – suppliers can join at any time, and it gives authorities a pool of pre-qualified suppliers to choose from. We want to ensure any DPS does not create barriers for charities, and especially those that lack capacity for business development.  

Decision-making

The paper proposes allowing buyers to include criteria beyond the subject matter of the contract and make decisions that consider non-economic and social value. While we welcome the messaging that buyers don’t have to select the lowest price bid is welcome, we struggle to see how this proposal is different to what is possible in the current system (following changes in 2015).  

Proposals to allow tenders to be evaluated from a wider point of view than one contracting authority could support more joined up working across the public service system. More information would be needed to know how this would work in practice.  

The paper also suggests legislating to require authorities to have regard to the government’s strategic priorities in a new policy statement, including growth and productivity, covid recovery, and climate change. We think it would be vital to ensure that local authorities and public bodies have flexibility to address local priorities. 

Challenge

The paper proposes options to speed up the process of legal challenge, and cap damages. These options could be positive because we know charities often struggle to compete with companies using speculative challenge as a business tactic or strategy. We think government should consider enabling corrections to happen during the procurement process to reduce the need for challenge. While we recognise the importance of redress being available, we think removing the fear of challenge is vital for authorities to take a flexible approach to procurement. 

Get involved

NCVO is drafting a submission to the consultation.  We want to make sure this submission reflects the experience and expertise across our membership. If your charity delivers contracted public services, we would like to hear your perspective:

• Do you agree that the framing of this paper is too narrow? 
• Is there anything that would help charities that’s missing from this paper? 
• Do you think their proposals will make things better or worse for charities and the people they support?  
• Do you have examples of challenges that would not be addressed by these proposals?

There are two opportunities to feed into NCVO’s submission:  

• We are hosting a small online meeting on 12 February (14.00–15.30) for charities to share their views on how the proposals will impact on charities. If you would like to attend, please email policy@ncvo.org.uk. 
• You can also email your feedback and thoughts before 18 February 2021. Please try to keep your feedback short and concise. Any examples of good or bad procurement practice would be welcome.  

NCVO is working with other charity and social enterprise infrastructure bodies to ensure our influence on this topic amounts to more than the sum of our parts. Keep an eye on the NCVO blog and @NCVO for any further updates about this work.