Procurement in a Nutshell – The CCS reissues their public procurement policy
15th December, 2017
This week, the Crown Commercial Service (CCS) has reissued its public procurement policy.
The policy contains updated information regarding Directives, regulations, policies and guidance in relation to the procurement of supplies, services and works for the public sector. While some elements of the policy are specified for central government buyers, it is nevertheless useful for public sector procurements as a whole.
Within the updated policy, the CCS highlights that the over-riding requirement of public procurement policy is to ensure that all public contracts are concluded taking into account value for money and the best mix of quality and effectiveness. Furthermore, the procurement frameworks are designed to guarantee this and encourage free and open competition.
The guidance highlights that public procurement in the UK is still subject to the EU Treaty principles of non-discrimination, free movement of goods, freedom to provide services and freedom of establishment. Additionally, it is also still subject to the general principles of equality of treatment, transparency, proportionality and mutual recognition which have arisen out of the case law of the European Court of Justice (ECJ).
The CCS policy sets out the EU Directives and regulations that the UK is obliged to follow such as the Directive on Public Procurement and the Public Contracts Regulations 2015. These emphasise the importance of ensuring that European procurement is open and competitive, and ensures that suppliers are treated equally and fairly.
The revised policy also outlines the domestic legislation that Contracting Authorities must adhere to, including The Small Business Enterprise and Employment Act 2015 and The Public Services (Social Value) Act 2012.
The procurement policy framework
The piece then sets out the policies which all central government buyers must implement:
1. Procurement policies for value for money and savings
As a public sector buyer, value for money should be central to any procurement process. Further there are spending controls which must be complied with if you are a public sector buyer. These concern areas such as advertising, consultancy and digital service delivery.
2. Procurement policies for conduct of procurements
This component of the policy contains a number of elements:
- Lean sourcing: Central government buyers are required to adopt the Lean Sourcing principles, your authority must complete all but the most complex procurements within 120 working days from publication of contract notice to award.
- Procurement processes: Buyers must follow the policy on selection of procurement processes that accompany the Procurement Route Decision Tree and the Open Procedure should be the normal default choice for government procurement.
- Early market engagement: Buyers are required to operate an open door policy for current and potential providers to discuss upcoming procurement opportunities, by making greater use of Prior Information Notices (OJEU) to promote early market engagement.
- Outcome based specifications: Outcome based specifications should be used as much as possible, these focus on the desired output of a service in business terms rather than a detailed technical specification of how the service will be provided. This allows buyers more scope to propose innovative solutions.
- The standard selection questionnaire: The questionnaire asks suppliers to self-declare against the list of mandatory and discretionary exclusions set out in the Public Contract Regulations 2015. This is designed to give information about a supplier’s financial strength and experience in delivering goods and services, to help buyers decide if a supplier has the capability and capacity to carry out a contract.
- Suppliers past performance: Bidders’ past performance is taken account of in major government procurements.
- References: Finally, this section emphasises the importance of references (especially for small businesses), it is recommended that requests for references are always accepted.
3. Procurement policies in support of enterprise and growth
The CCS sets out its revised target to have a third of central government buying to be small businesses by 2020.
To achieve this, the Government has taken a range of steps to ensure SMEs get the most out of procurement opportunities including: the use of the single online portal Contracts Finder; simplifying procurement processes; and by ensuring the fair treatment of small firms by mandating prompt payment terms throughout a public procurement supply chain.
4. Procurement policies for promoting greater transparency
The Government in its policy has committed to adopting and encouraging a greater level of transparency in its commercial activity. To achieve this, the Government has put in place a number of mechanisms:
- The Contracts Finder website: – launched in 2015, this requires Government buyers to publish all advertised UK public sector procurement opportunities, all tender documents and all contracts with a value of over £10,000. This not only increases transparency but also makes it easier and more accessible for smaller businesses to engage with public sector buying.
- The Local Government Transparency Code 2015: – these are additional recommended requirements for greater disclosure from Local Government.
5. Procurement policies for supporting wider government policy
There is a focus here on ensuring that as a buyer, you are buying more sustainable and efficient products and you engage with your suppliers with a view to reducing the impact of their supply chain.
6. Procurement policies for technology
As a buyer you must comply with the Government’s technology strategy and you should refer to the guidance in the Government Service Design Manual. You must also be aware of the Government’s ‘Cloud First’ policy and also the Government’s ‘red lines’ for IT contracts, which are designed to encourage competition whilst delivering value for money.
7. Procurement policies for improving construction
Buyers should follow the measures set out in the Government’s Construction Strategy and also comply with the Common Minimum Standards for the procurement of built environments in the public sector.
Why is this important?
This clarification from the CCS is important because it emphasises that the UK will continue to follow EU procurement Directives and policy in the uncertain period before Brexit.
This clarity is particularly useful in an unstable, unpredictable economic and legal climate. The guidance, highlights that the core EU principles will continue to apply, namely equality of treatment for all tenderers and mutual recognition.
The Government has put a lot of emphasis on ensuring that all buying and procurement across government is as centralised and as regulated and similar as possible – it appears this will continue on an ongoing basis going forwards.
How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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