Recent procurement guidance and policy

We review recent government procurement guidance and policy including:

• The new core PQQ questions issued recently by the Cabinet Office
• The Small Business, Enterprise & Employment Bill and its implications in the procurement sector
• A new procurement policy note on addressing energy efficiency as part of procurement
• New short form terms and conditions for low value procurements issued by the Crown Commercial Service

Cabinet Office issues new core PQQ

The standard core PQQ questions have been revised to reflect policy changes, see PPN 08/14 and the core questions in Annex A (which replace PPN 01/12 and the questions published with that document). The new PPN also notes that “upon transposition of the new EU procurement directives a new approach to asking questions relating to suppliers’ suitability is planned” so we should expect further updates to the core PQQ in due course. The PPN applies to central government bodies and NDPBs with all other contracting authorities advised to follow the guidance too.

Readers will also note that the Department of Health has made a commitment to adopt a standard PQQ for use across the NHS and we anticipate the DH may well take its lead from that of the Cabinet Office.

Small Business, Enterprise & Employment Bill

Readers will be aware that one of the key policy goals of Government has been the encouragement through public procurement of small and medium-sized entities (SMEs). This Bill was announced in the 2014 Queen’s Speech and has now been published. It contains several measures aimed at creating opportunities for SMEs to innovate, compete and grow.

Of particular interest on the procurement side are provision for the Cabinet Office to introduce new regulations imposing “public procurement duties” on contracting authorities based around how they exercise their procurement functions, with the aim of streamlining the experience for SMEs and creating a consistent approach to procurement across the public sector. The duties could range from a duty to exercise procurement functions in a timely and efficient manner through to a duties on the the process for entering into contracts and also engagement with suppliers.

The Bill also includes a new possibility for regulations to be introduced which would allow the Cabinet Office or Secretary of State to investigate how a contracting authority has exercised its functions relating to procurement (for example, its functions under the existing Public Contracts Regulations 2006 and, following on from the entry into force of the new EU directives, the new UK Regulations once they come in to force). In-scope contracting authorities will be required to co-operate with such investigations. Note however that Ministers, Central Government Departments and those covered by the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (ie, NHS England and CCGs) may not be investigated.

We will keep an eye on the Bill as it makes its way through the parliamentary process and report on future developments as they emerge.

Implementation of the Energy Efficiency Directive (Directive 2012/27/EU)

The Cabinet Office has recently issued procurement policy note 07/14 in order to meet the UK’s obligations under the Energy Efficiency Directive. The PPN requires all in-scope organizations to ensure, from 5 June 2014, that they procure “highly energy efficient” products, services and buildings. The relevant efficiency standards are set out in the annexes to the PPN.

There is an exemption, however, where to do so would not be cost effective or would prejudice effective competition. The PPN applies to all Central Government Departments, including Non-Ministerial Departments, Executive Agencies, and Non Departmental Public Bodies (NDPBs) (however NDPBs are only covered where they are controlled and mainly financed by the parent department and cover the whole territory of the UK or England). For further information you can access PPN 07/14 here.

The Crown Commercial Service and the Government Legal Service have recently published (on an advisory rather than mandatory basis) a set of standard "short form" terms and conditions, intended for use where the value of the procurement falls below the relevant threshold. Read more and access the terms and conditions via our recent blog post.