Draft UK Procurement Regulations: completing the jigsaw

The government has recently confirmed that it will publish its responses to both parts of the consultation at the same time, although no estimated date for doing so has yet been provided.

The first part of the consultation was generally uncontroversial, dealing as it did with issues such the appropriate methodologies for calculating whether certain thresholds that are relevant to the application of specific provisions of the Act are met.

At the same time, in our response to the consultation (7-page / 140KB PDF), we highlighted the need to address potential ambiguities in the methodology for calculating certain percentages, as well as an apparent tightening of certain calculation rules that may have unintended consequences in the application of the Act.

The second part of the consultation dealt primarily with the information that public bodies and regulated utilities must include when publishing specific notices under the Act.

In our original commentary on these draft regulations, we highlighted a number of issues, including a change as regards the feedback that contracting authorities would be required to provide to bidders in relation to the award decision. According to the draft regulations this should include feedback that relates to each “strand” of an award criterion – a term which is not defined anywhere in the Act or the draft regulations.

At the same time, as we noted in our consultation response (12-page / 70KB PDF), it would seem likely that – by reference to established case law – this term is meant to capture sub-criteria and other elements by reference to which a contracting authority evaluated tenders.

Separately, whilst neither the Act nor the draft regulations include a requirement to provide unsuccessful bidders with the characteristics "and relative advantages” of the successful tender, the detailed information that the draft regulations propose that regulated bodies should provide in their “assessment summary” should be sufficient for the purposes of allowing unsuccessful bidders to take a view on whether the award decision was well-founded.

In the meantime, the government has begun to publish guidance on the Act. It is expected that a lot more will be published in the coming months in preparation for the Act taking effect, currently anticipated to be in October 2024.

Co-written by Hector Denfield of Pinsent Masons.