Simon Randall CBE is a former Bromley councillor and has been advising local authorities on procurement matters for many years.
One of the biggest prizes in the UK’s Brexit negotiations is the opportunity to devise our own public procurement procedures.
The existing EU-inspired regulations are complex, time-consuming, and cost both the public sector and potential contractors hundreds of millions of pounds per year. Indeed, housing associations, who are inappropriately regarded as public bodies under the regulations, calculated in 2011 that the cost to them of observing the procurement rules equated with 9,000 additional new homes per year.
Our Brexit negotiations need to ensure that as soon as possible after March 2019 we withdraw from the EU procurement regulations which would be possible even if there was a transitional customs union, by adopting the World Trade Organisation approach through the Agreement on Government Procurement.
The most recent 2015 regulations were intended by the EC to simplify the procurement regime. However, not only did they hugely complicate the already complex arrangements, but the UK government gold-plated them with additional provisions. Thus, the new post-Brexit regulations need to take back control of public procurement and to introduce far simpler provisions, whilst always ensuring transparency, integrity, avoidance of conflicts of interest, and prevention of corrupt practices.
Our new Anglo-Saxon Regulations should, at the very least, be drafted:
- To promote wider use of the Public Services (Social Value) Act 2012 for goods, services and works contracts with the emphasis upon improving the economic, social and environmental wellbeing of the relevant area in both contract criteria and contractor selection. If this legislation was embedded in procurement procedures it would assist local authorities to meet the needs of local communities through the commissioning cycle
- To enable local authorities for a range of cherished cultural, heritage, educational and leisure services to have more influence over the preferred contractor, subject always to value for money considerations
- To facilitate greater use of mutuals, co-operatives and charities managing local authority and other public services, a 2017 manifesto commitment
- Enhancing the Right to Challenge in the Localism Act 2011 to delegate services to parish councils, voluntary bodies and mutuals without the need to undertake market testing
- To exempt housing associations from the public procurement rules entirely, as they were only included following both a mistranslation from the original French directive and pressure from the French government in 2005
- To reduce the number of procurement methods, including the hated competitive dialogue
- To increase monetary thresholds for services, supplies and works, subject to any international obligations
- To devise a more efficient and cost effective dispute resolution without the involvement of the European Courts.
The importance of taking back control of our public procurement arrangements should not be under-estimated as it would be a huge fillip for the UK economy, with the opportunity to benefit UK contractors and SMEs, charities and mutuals, as well as saving taxpayers and potential contractors millions of pounds in unnecessary expenditure.
See the Society of Conservative Lawyers’ pamphlet – Public Procurement after the UK’s EU Departure here.