So are we ready for all the change that 2024 is going to bring to UK procurement law? There are still quite a few blanks to be filled in before we can really understand how the law will work as a coherent whole. I have spent some time reviewing the wealth of comment on the new regime (and participated a little to it as well). There are a diverse range of views as to just how revolutionary this will all be, and I am still reflecting on what I think about the overall impact of the range of changes.
An immediate practical problem that intrigues me is how the launch of the new legislation for October this year is going to work if that date happens to be in the middle of a general election campaign. I suppose the rules of pre-election sensitivity (which are sometimes called something else) do not prevent this, but given the planning involved it seems to me at least interesting timing. Any thoughts anyone?
Of course the great procurement reform of 2024 is already well underway. While the Procurement Act 2023 brings together much of the current suite of regulations, two key separate areas of legislation have come into force in the last week. On 25 December 2023 the new Public Service Obligations in Transport Regulations 2023 came into force in Great Britain (but not Northern Ireland). (Why then? Because there’s no public transport on Christmas Day?). It is slightly odd that the first step in exploiting our new Brexit freedoms involves retaining the rather weird anomaly that a regime that functions as procurement regulation in public transport. It is notable that no full impact assessment was conducted for these Regulations so it is difficult to tell whether the practical reasons keeping the regime separate from the new procurement legislation warranted the retention of this EU-derived architecture. Perhaps this had to be done this way to respect the different needs of different nations of the UK.
And yesterday, in England, we had the Health Care Services (Provider Selection Regime) Regulations 2023 come into force. This looks to be a very significant change to the operation of the health sector, although again there is something of a lack of transparency in understanding how we have reached the final landing place. There was alot published when the system was first under review a few years ago, but not alot to explain the substantial changes that were made. There is much to consider here, but I am particularly interested in the new remedies system under the regime which introduces the Provider Selection Regime Revew Panel. This looks to have the potential to create an interesting new model for procurement remedies.
The 2024 reforms all take place at an interesting time for the broader thinking about procurement law and regulation. Although the Procurement Act 2023 makes a number of important changes to the law, its roots in the existing EU-derived regulations are pretty clear. Our current legislation still has much in common with the 2014 EU directives. It is relevant to note that the European Court of Auditors concluded in its report in December (https://www.eca.europa.eu/ECAPublications/SR-2023-28/SR-2023-28_EN.pdf) that those directives had no demonstrable effect on the EU single market, and that level of competition for public contracts had diminished over the past 10 years in the EU. It is not clear whether this has had an impact on the cost or quality of the procured goods, services or works. The European Commission’s response to that report is a little vague, but does recognise that some legislative change may be necessary although there seems to be no enthusiasm for major reform. In any event that would have to be a matter for the new institutions after the European Parliament elections in May.
In the UK, the report of the House of Commons Public Accounts Committee into “Competition in public procurement” is hardly more enthusiastic (see https://committees.parliament.uk/publications/42520/documents/211431/default/ ). The importance of the Procurement Act 2023 is acknowledged but a number of other matters are referred to as needing change.
It seems that in both the EU and UK there is the potential for some serious reflection as to whether the current form of procurement law is really suitable to support effective public procurement. It might be that this leads to a much more radical range of changes and the Procurement Act 2023 might end up being seen not as a radical new change, but rather the last iteration of a model for procurement law that has effectively captured much of international procurement debate, but now needs a radical rethink.
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