Procurement Act - A focus on systems and technology
The Procurement Act 2023 seeks to bring in a refreshed approach to the digitisation and accessibility of data, with the intention to help streamline the procurement for all parties involved . This article looks at the main areas where this has been outlined in the act and LHC’s view on the opportunities and risks with the new proposals.
Central Digital Platform
The act sets out the implementation of a new digital platform to improve processes and drive transparency. The digital platform "will enable notices and documents to be accessible by electronic means, free of charge and through a single point of access[1]."
This new digital platform will essentially replace the existing Find a Tender and Contracts Finder platforms, bringing all notices and associated documentation under a single platform. This will be welcomed by buyers, as currently having to use multiple notice board portals is a pain!
The Central Digital Platform is set to also enable suppliers to register, provide key company details and complete a standardised selection questionnaire, creating a ‘tell us once’ opportunity for suppliers. The aim of this functionality is reported to "enable suppliers to bid for public sector opportunities without having to duplicate core information with each bid they submit[2].”
This is a bold and welcomed intention, but also one that comes with challenges that long standing providers of eTendering systems have struggled to address for many years. If the centralised platform can successfully tackle the issues of duplicate entries for larger organisations with multiple bid teams or users getting around the various system validation checks by entering dummy information, then this system could deliver the innovation and time saving it endeavours to.
The other key factor in the success of the platform, is that any standardised selection questionnaire produced is just that – standardised. As we know, in the built environment, the Common Assessment Standard and PAS91 are recognised construction specific iterations of the selection questionnaire currently set out in Public Contracts Regulations (PCR) 2015, and there are potentially other sector specific versions, as well as versions specific to devolved nations that will be covered by the act. Unless these are all intelligently and seamlessly factored into the digital platform, or streamlined as part of this implementation, the desired benefits will not be seen with buyers and suppliers having to create add-ons to capture the missing or differing requirements.
LHC have raised these concerns through various forums, events and consultation opportunities and, to date, have not been given any clear indication that these issues have been successfully addressed, however we remain hopeful.
Debarment List
A key policy area for the act is the introduction of a centrally managed debarment list. This will comprise of a central list of suppliers debarred from bidding for public contracts for a specified period due to supplier misconduct (as an organisation) or in relation to the delivery of a public sector contract.
The debarment list will be managed centrally with suppliers added if – following an investigation by the relevant Minister – they are found to have met the exclusion grounds such as fraud, corruption and non-payment of taxes, and subsequently it is decided that they should be added. Effectively this will bar them from being awarded a public contract for a period of time.
Suppliers will be given notice that such an investigation is being untaken and will have an opportunity to make representations. The Minister must also give the supplier notice of any decision to add them to the debarment list, and adhere to a standstill period during which the supplier can instigate court proceedings to suspend the entry of their name.
Should suppliers be placed on the list, they also have the ability to subsequently appeal the decision and request removal from the list on the basis of a material change in the supplier’s circumstances and/or evidence of ‘self-cleansing’.
The debarment process is a positive step to help protect contracting authorities against entering into contracts with unfit suppliers. However, for suppliers, the prospect of being included on the debarment list and being excluded from bidding for future public sector opportunities for a period of time will be seen as a significant reputational and commercial risk. If suppliers are all acting correctly there is nothing to worry about!
With the discretion available to those in charge of the investigations and decision making process for the debarment list, this will be an area that will be followed closely by lawyers as consistency and equal treatment will be key to building trust with this new initiative.
