Some reflections on the Procurement Bill current draft

As mentioned last week, the Procurement Bill is back in the House of Commons and the Committee is looking for evidence submissions until February. In the meanwhile, these are some of my main reflections on the Bill as it stands at the moment. Michael Bowsher has also put some thoughts to paper on the Bill.

For the most part, the drawbacks pointed out during the Green Paper consultation as well as to the first draft version of the Bill remain in place, especially bearing in mind the limited number of non-government sponsored changes introduced by the House of Lords.

I remain convinced that overall the reform will be net negative in terms of actual simplification and barrier reduction to participation, particularly of SMEs. This is due to the wrong assumption that flexibility breeds simplification when it does not. What it does is increase the complexity of the system overall and that will be obvious once practice starts to deviate from contracting authority to contracting authority. Furthermore, kicking down the grass some of the difficult regulatory decisions that are to be magically sorted via either regulations or guidance will compound the complexity of the system as a whole. Together, I  think these are the key failures of the reform and the price for them will be paid for years to come.

Then we have the issue of transparency. The Green Paper did a song and dance about 'transparency by default' but the Bill in its current form has gutted that ambition. For the most part we are seeing the continuation of the existing approach of toothless requirements for transparency, especially for ex-post transparency. As such, general ex-post transparency will for the most part remain a statement of intentions without real consequences. In addition, even the reports on investigations conducted on contracting authorities practice are not public by default and instead their publication is only to be considered.

The Bill transforms what were the negotiated procedures without prior notice into direct awards which, to an extent, is a recognition of what they have always been, so calling a spade by its name is not wrong. However, in addition to the existing grounds, it will be possible to expand them further for the protection of life, health etc by secondary legislation, a sure way to lead to a case-by-case approach to their expansion. And we all know how these direct awards are prone to poor procurement practice, fraud and, yes, corruption.

Finally, some words about legislative technique and especially definitions. Overall the legislative technique employed in the Bill is poor, that is, it is not drafted in a way that enhances comprehension by the reader. This is seen throughout the Bill but the cake goes to how definitions are treated. We have a couple in section 2 and then they're peppered in dozens of other sections on a need basis. This means there are plenty of unnecessary cross-references in the Bill. The situation is so dire that we now have section 120 which compiles most, but not all, of the definitions in the Bill, including those that are established in the Schedules coming afterwards. It makes no sense and shows the poor level of care taken with the drafting.

Let's hope the remaining stages of the legislative process provide us with some respite on these issues, but I am not really counting on it. Surely all will be solved with further regulation and guidance since that is how a legal system *really* is simplified.