A bird’s eye view about the Procurement Act 2023 philosophy

While the time is not right to talk about what I will be doing with the Procurement Act 2023, I can reflect on the philosophy that seems to permeate it. As a golden opportunity to design a new procurement system from scratch the Act is a disappointment as I have said so many times since the reform process started. It is not a modern system built around modern principles but instead a hodgepodge of different ideas pulling it in many different directions. I remain negative on its purported benefits or alleged improvements over the existing Public Contracts Regulations 2015.

Having said that, there is indeed a fundamental philosophical change in its perspective over what a procurement system is for. The EU public procurement system is set up with the specific objective of achieving the single market, in fact that is the legal ground for the current round of Directives. This can be evidenced with legal choices from the principles down that are designed to allow economic operators to compete in equal footing.

In what sense is the Procurement Act 2023 different then? Well, it seems ‘designed’ (as far as something with 500+ amendments during the legislative process can be designed…) with a ‘public sector first’ intent. Some of its the key changes such as the disappearance of formal procedures, to be replaced with ‘flexibility’ have been a recurring dream of *some* contracting authorities (well, one, really) for a good while. As I argued during the public consultation process providing that flexibility would come with significant costs for the market, reduce legal certainty and function as a barrier. While some of the worst behaviours can theoretically be restricted via regulations, that remains to be seen and it will come at the expense of the other main plank of the reform: ‘simplicity’. Standardisation is underrated.

The penny dropped for me when looking at the Procurement Act provisions for dynamic markets. Now, that’s an area where the EU rules could do with a proper re-think. But what can we find in the Act? Well, it seems the market operator can now charge economic operators for the privilege of winning contracts or even just participating (utilities). There is absolutely no way to sell this as a pro-supplier move as it is simply an opportunity for authorities in the public sector to make money by tendering contracts. This is a significant departure from the EU model where the rules have been tightened over the years to avoid this kind of behaviours from contracting authorities. I am old enough to remember contracting authorities charging for access to tender documents and this move in the UK is a variation of the theme.

In short, my view on the philosophy behind the Procurement Act 2023 is that the country moved from putting suppliers first to putting contracting authorities in a more privileged position. That's a bigger change than meets the eye.

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