Transforming Public Procurement Law after Brexit: Early Reflections on the Government’s Green Paper

Abstract

On 15th December 2020 the Westminster Government published its long-awaited Green Paper on public procurement law, “Transforming Public Procurement”, setting out its vision for the UK’s post-Brexit regime. In a number of Working Papers and articles the author has set out her own vision for a post-Brexit regime, which proposed that new legislation should regulate not mainly to ensure open markets, as with the current EU-based rules, but also to secure other objectives, such as value for money and integrity; and set out seven (related) principles which it was suggested should underpin the reforms, namely: an open contracting approach; a single and uniform regime; significant legislative simplification involving a shift from hard to soft law; use of familiar concepts, rules and terminology where appropriate; a rebalancing of interests away from open market objectives towards value for money, sustainability and reduced procedural costs, and a related shift in regulatory strategy to increase flexibility; more effective and balanced enforcement; and a common framework across UK jurisdictions. The present Working Paper provides an assessment of the Green Paper from the perspective of the key themes and recommendations of these proposals. It is explained that the Green Paper proposals follows the above approach to a very large extent. It proposes bold reforms to make the system more flexible, more streamlined and more transparent, including proposals for refocusing objectives, open contracting, a single and uniform regime, significant simplification, enhanced flexibility, including free access to negotiation and substantial improvements to enforcement. However, this positive view does come with some reservations. In particular, there is inadequate treatment of the important issue of mechanisms for recurring purchase in the form of framework agreements, dynamic purchasing systems and qualification systems. Here the proposals have potential for significantly reducing, rather than increasing, flexibility, contrary to a key aim of the reform, but are not sufficiently clear or justified to provide a basis for meaningful consultation. A second reservation is in the area of remedies. While valuable reforms are proposed to speed up court cases and improve pre-contractual remedies, it seems unlikely that these proposals alone will ensure access to justice for smaller companies; and while the prospect of removing some cases from the courts is raised for the longer term, such a future reform is by no means guaranteed. Finally, it is disappointing that the vision of a single and uniform regime has not been extended beyond the four sets of procurement Regulations that derive from EU law, as there are no convincing reasons not to do this.