In this blog we look in more detail at the proposals for reforms to transparency notices in the Procurement Bill following on from the Government’s Green Paper (Transforming public procurement).
The principles of transparency have long been embedded within the public procurement regime, however the importance of contracting authorities complying with these obligations have been brought to the public’s attention through a flurry of recent challenges. Most notably these have been raised by the Good Law Project in relation to the then Secretary of State for Health and Social Care’s failure to comply with obligations under regulation 50 of the Public Contracts Regulations 2015 (as amended) (“PCR”) to publish contract award notices and the policy provisions regarding the publication of redacted contracts under the ‘Publication of Central Government Tenders and Contracts: Central Government Transparency Guidance Note (November 2017)’.
Whilst the publication of PPN 09/2021 (Requirements to publish on Contracts Finder) provided some further clarity on contracting authorities’ transparency obligations, the Green Paper, the consultation responses (as set out in Transforming Public Procurement – Government response to consultation) (“Consultation Response”) and the now published Procurement Bill all highlight Government’s commitment to increasing public sector procurement transparency by requiring the publication of transparency notices at all stages of the contract lifecycle.
This commitment to transparency is, however, notably no longer included as a principle of public procurement. Whilst the PCR included an express principle requiring contracting authorities to act in a transparent manner, the Green Paper proposal (as later scaled back in the Consultation Response) for transparency to be included as a mandatory principle does not feature in the Procurement Bill. Instead, Section 11(1)(c) of the Procurement Bill requires contracting authorities to “have regard to the importance of…sharing information” which now represents the once proposed transparency principle. It is unclear what the legal effect of the four stated objectives within Section 11 will be, however the absence of a mandatory principle is somewhat surprising given the otherwise widespread emphasis attached to transparency.
The above diagram sets out a high level summary of the proposed transparency reforms and the multiple (and on-going) requirements to publish transparency notices at each stage of the contracting process.
It is clear that the aim of the proposed amendments to the transparency regime is to promote (and embed) transparency within the full lifecycle of contracts. However, the sheer number of notices and circumstances triggering the obligation to publish a notice will result in a significant increase in the administration required to manage contracts within already stretched commercial teams. E-tendering portals may, in time, be able to assist in mitigating against the administrative burden associated with such notice requirements, by automating notices and notifying contracting authorities at each stage when the obligation to publish a notice arises. However, these are unlikely to be re-configured and well understood from the onset of the obligations.
One reoccurring theme with the transparency provisions is the widespread references to “any other information specified in regulations under section 86”. Under section 86, an “appropriate authority” may, by way of regulation, make provisions about the form and content of notices, as well as how such notices and information will be published, provided, or revised. This leaves significant room for the transparency requirements to be amended, should concerns arise as to the practical impacts of the obligations.
Based on the House of Lords’ second reading of the Procurement Bill, it is clear that the transparency requirements are likely to remain a top priority for Government. However, it remains to be seen how the proposed requirements will evolve during the legislative process. We will continue to monitor developments and provide further updates in future blog posts.
For a copy of our practice note setting out a deep dive into the proposed changes to the transparency landscape, please do get in touch with firstname.lastname@example.org or your usual DLA Piper UK Government Team contact.
Previous commentary from DLA Piper on the Procurement Bill and Cabinet Office’s response can be found at the following links: