The UK Procurement Bill’s proposed change from five current procurement procedures down to two raises many questions for contracting authorities and their suppliers.

Under the existing Public Contracts Regulations 2015 (PCR 2015) regime public sector buyers must select which of the five permitted procedures most closely matches their strategy, and thereafter they must follow the selected procedure’s rules with little room for flexibility. The current PCR 2015 regulations offer a range of options, depending on the buyer’s need, from Open and Restricted, where the buyer knows, to a point, exactly what they require; to Competitive Procedure with Negotiation and Competitive Dialogue, if the buyer wants the ability to have a degree of negotiation and dialogue around the potential solution; to Innovation Partnership, where a genuinely innovative solution is required.

In the future under the New Procurement Act buyers will have a choice between just two routes:

1) The Open Procedure where any supplier can submit a tender in response to a published notice, with no pre-qualification or shortlisting process; and

2) Competitive Flexible Procedure, which is defined by the Bill as “such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the public contract.” This procedure is non-prescriptive and the Bill contains minimal detailed rules as to how contracting authorities should utilise the procedure. Nonetheless, contracting authorities will be under an obligation to observe the overarching procurement principles when designing a competitive tendering procedure, whilst still complying with all other requirements of the Act. Documenting your procedures and communicating these to all bidders will therefore be very important. While this allows buyers to design a process to suit their need, it may cause confusion for bidders because of lack of clarity about what the actual structure of the procurement is.

And, therein lies the difficulty – to design and document a bespoke procedure that meets the requirements of the Act whilst delivering the desired procurement. This will be the key challenge for all public sector procurement teams in implementing the New Procurement Act.