National procurement policy objectives in the UK's Green Paper of public procurement reform

One of the changes the Government wants to introduce with the procurement reform is the concept of a "national procurement policy" to be followed by contracting authorities when carrying out procurement. That is to say, contracting authorities would no longer only follow their own objectives in public procurement (narrowly constructed or more widely such as the secondary policies) but would also have to follow centrally mandated policy objectives set for by Government.

I will step aside the minefield this proposal generates in terms of devolution (at least in Wales which shares the procurement legal framework with England) but even for the wider public sector in England this idea is pretty damning. This would mean that local councils, which are directly elected by citizens in local elections, would now have to do the Government's bidding via their own procurement work.

It doesn't help that the Government sees this 'intervention' as an exception to the subject matter contract link, the rule which ensures that only the elements relevant to define the best bid are actually taken into account. This is connected with the proposed transformation of the Most Economic Advantageous Tender concept into the Most Advantageous Tender which, one would think, now can mean the most advantageous not necessarily from the perspective of the contracting authority but also that of the Government.

This is bonkers and normalising the creation of award criteria not connected with the contract itself will lead to a cottage industry of consultancies specialised in drafting up ideas to meet such criteria which will be hard to police and enforce. In other words, like I have been saying for the better part of last decade, this amounts to importing the idea of defense offsets into regular public sector procurement. This increases the risk of corruption and definitely increases the complexity both during the contract award and performance.

In effect this is yet another example of the Government externalising the compliance cost with its own objectives into the wider public sector by mandating contracting authorities to follow its own policy objectives. As usual, it would be preferable to instead making into law those policy objectives if they are indeed worth pursuing. If we look at para 105 of the Green paper we see two examples being suggested:

"a supplier's record on prompt payment of its subcontractors across its business;

a supplier's plans for achieving environmental targets across its operations"

If the Government really thinks prompt payment of all subcontractors of a given undertaking (that is beyond the confines of a given public contract) is important, then it should legislate about it in terms of commercial debts interest and recovery instead of creating yet another award criteria to be assessed by a contracting authority.

The second example is even worse than the first, since the latter at least pertains to the current or prior behaviour of an undertaking. This second example is simply about the plans of the undertaking, effectively mean what they are planning to do *in the future* and not the reality. All they will have to do is hire a nice set of consultants to paint a rosy picture of how heir environmental behaviour will change in the future and how the targets will be hit. As it is set in the future these never have to actually be hit but only pledged.

Obviously these should never be award criteria since they're irrelevant for the contract being tendered and should at most be either exclusion or selection grounds since they pertain to the undertaking in general and not its ability to actually deliver the contract.

These two examples are also good springboards to question what are the consequences for an undertaking which fails them during the contract being performed, should they amount to contractual conditions and the failure lead to consequences like termination? And even if they did, which contracting authority in its own mind would terminate a contract for non-compliance with a contractual condition which has nothing to do with the delivery of what it wanted to buy?

The net result of this idea will simply be more complexity for both contracting authorities and undertakings. And for the second group, this kind of additional requests disconnected from the subject matter of the contract will particularly disadvantage SMEs and third sector organisations.

Once more, instead of delivering real simplification, the Government is instead proposing to add more complexity into the system.

Next up: (lack of) automation