The Red Review - New Procurement Act Webinar Session
In this episode, Jeremy is joined by procurement trainer and new procurement act expert Gemma Waring for a live webinar session we recorded.
With the new act coming into force on the 28th of October this year, now is the time to find out what you need to know, and how to prepare for, all things public sector bidding moving forwards
Check out our Procurement Act 2023 page to Learn how to prepare for the biggest change to UK Public Procurement in a generation
Transcript
[00:07.0]
Afternoon everybody. Hello there. Hello there. I can see people piling in at the moment. It's the classic thing used to using teams and realised this was on zoom. And so we'll get people joining over the next few minutes I'm sure.
[00:23.9]
But I can see we've got roughly four, five people joining every couple of seconds at the moment. It's we've already got quite a lot of people on. It's fantastic. It's obviously an important subject already. Already. Glad we've, we've started the conversation so.
[00:39.9]
Right, I reckon if we do introductions and bit and all of that sort of stuff, by the time, yeah they'll, they'll get the interesting bit. So welcome everybody. Thank you for joining us on a slightly grey Friday morning. Hopefully it's going to do a bit better for the bank holiday, but it's raining here at the moment in Cambridgeshire.
[01:00.3]
So who's this guy? So I'm Jeremy Brim, I lead Growth Ignition. We're a transformation consulting but largely capability development business in the work winning space. And so we help organisations of all sizes develop their processes, their performance environments, across business planning, marketing, but particularly key account management, capture and our home territory of bidding, having grown up in that world.
[01:32.2]
And then we train their people in all of those aspects as well as provide digital learning assets, and all of those kind of things. So really hopefully transformation experts in doubling people's margin, sorry is our target. We set ourselves if we do things properly.
[01:50.5]
And so the new Procurement act feels like it's been coming a long time and so there's lots of homework involved in this which I just felt I wasn't going to be able to bridge the gap on. And so I looked across the market to understand who was really leading the thought leadership in this and made friends with my friend Gemma, who I'll get to introduce herself in a minute.
[02:18.6]
But there's been a lot going on, much of it behind the scenes but it's really coming to the fore now, with I believe Gemma a go live date of 28th October correct? Yes. Got one thing right, so that's good.
[02:35.0]
So as, as with, you know, we had a great session with my friend, Carrie Anne hewling on social value, recently, I thought likewise, I should get Gemma in to give a bit of a talk.
[02:50.1]
So rather than me blagging it, I'd get a real grown up who's actually done the work and is a real expert to talk us through this stuff. And I'm going to be learning today as well, because I'm not as up to speed with this as I would have liked. So I'm certainly going to have some questions. And so, speaking of which, please do feel free to use the Q and A function, so Q and A, not the chat function, to, to ask us questions.
[03:14.4]
I'll manage the questions, Gemma, and, and ask you those so you don't have to worry. Yeah, about through and all of that kind of stuff. And. And we'll get underway. So, Gemma, if you wouldn't mind introducing yourself. And then Gemma's got some slides to talk us through, as I say, ask some questions using Q and A.
[03:31.3]
And, we'll deal with those at the end. Unless there's anything particularly pertinent, Gemma, that I pick up through, through the conversation. Feel free to interrupt if you feel like there's something, linked to where we're at. So, Good afternoon, everybody.
[03:47.0]
Thank you for choosing to spend what's probably your, lunch break with us, if, you're lucky enough to get a lunch break. As Jeremy said, you know, I'm here because I have been working quite close to the rollout and the thoughts and the development of the Procurement act, certainly over the last 12 months.
[04:07.5]
I've been following it since its, green paper and white paper days to sort of, you know, figure out what was going on. But I've been quite involved in. In my experience, I've been working both on the buyer and the supplier side, in public sector procurement for about, I think it's about 18, 19 years now.
[04:26.0]
So, I've got a perspective of both sides. I've, you know, been a bid manager, I've been a bid writer, I've been a supplier. I've also been a procurement manager. So I've got a perspective on what happens on either side. And I'm here today to kind of share what has been developing and what I've learned.
[04:44.2]
But not only just the facts, because obviously the facts are out there, like, this is changing to that and that's become that. But more around what you can actually do with that information. Because I know from some of the conversations I've been having, some people have thought, well, you know, we're the suppliers, we'll just do whatever the buyers tell us to do come October.
[05:03.0]
But there's absolutely opportunities for you to capitalise on now to try and Use it as a, as a good business development, opportunity. So that's where, where I'm coming from. I've also doing numerous roadshows, events, things like this, over the coming six months and probably for a little while afterwards while everybody gets used to, to the new regulations.
[05:24.1]
So, should I kick off? Jeremy, is there anything else you want to say before I get stuck into the content? No, fire away. I was just, I was just scanning through who we've got as attendees and there I would say looking at names, I recognise they're 99, supplier side.
[05:41.7]
But I can see my old friend Duncan actually, who's public sector procurement dude. So no, no pressure because, he's fantastic but I suspect he's willing to learn as well. So, but just. So just bear in mind is there is a little bit of both, on, on the call, but mostly suppliers.
[05:57.3]
Mostly suppliers, but yeah, do go for it. Yeah. And just in terms of how. What I'm going to go through is I'm going to go through at a very high level, some of the content. So some of you that might have interacted with me before on previous webinars, or maybe it's sort of following the rules, might know some of the early part of it, but we need to go through it because not everybody on the call, like we're sort of well over 100 people on the call now, not everybody will have that baseline knowledge.
[06:22.7]
So I'm just going to run through some of the basic changes, and then we're going to look at each one of them in turn and kind of say, well, what does that actually mean to me? What can I do with that information? But Please do fire in questions in the Q and A log as we go through because I really want you to use this opportunity to sort of ask anything specific and come away knowing exactly, kind of, or feeling slightly more confident at least in this, the new regulations and what's happening and being able to sort of talk about them within your organisations.
[06:55.0]
So as a starting point, Jeremy and I both mentioned there that the Procurement act has been a long time coming. This isn't something that has fallen out of the sky as, you know, the vast majority of legislation doesn't. So although it says they're. The first reading of the draught of the procurement bill was back in, well, two years ago now, back in 2022, there were the green papers and the white papers that.
[07:19.5]
So it actually started all the way back in 2021. The reason it's important to realise that is because of the context of what was happening around that time in our lives. I'm sure you all remember vividly that was peak Covid, peak lockdown, peak pandemic. And unsurprisingly, when we now see certain news stories and points of interest regarding what happened to procurement during the pandemic, most notably around PPE contracts and things like that, it's important to know that that was the backdrop to this legis.
[07:51.4]
So it was at a time when government was maybe a bit frustrated, felt like the hands were tied a little bit, were needing to procure quickly, at pace, at speed, and all of these rules and regulations maybe felt a little bit cumbersome and a little bit difficult to navigate.
[08:08.4]
So the bill officially achieved Royal Assent in October of last year, which means it's officially changed from the Procurement Bill to the Procurement act and it has become an act of law. And then since then, the Government Crown Commercial Service primarily have been working on a programme of drafting secondary legislation, guidance, and information for predominantly the buyer community.
[08:33.1]
That's the important thing. There have been knowledge drops for suppliers, but they're very, very basic. And a lot of the L and D effort is geared towards buyers and buyers with a working knowledge already of the Public Contracts Regulations 2015.
[08:48.8]
So it's not suitable for everybody, it's not entry level introduction to procurement. It's very much for experienced practitioners and certainly not for the supplier community. We've recently had, just in the last couple of months, a raft of releases which all seem to come out at about 3 o' clock on a Friday afternoon, which nobody was particularly happy about, with additional guidance, and the official 2020 regulations themselves.
[09:18.9]
So what we're used to seeing is if anybody's ever interacted with the actual 2015 regulations documents, everything's in there. From a process point of view, etc. The act is slightly different, whereby the regulations pretty much just focus on publication requirements, and matters of compliance.
[09:37.8]
And the act is still an active document that we have to refer to as well. So they've been putting out additional guidance to do with specific matters, specific parts of the regulations, giving specific definitions to things as well.
[09:53.0]
And they're in quite decent, plain English, user friendly formats. And we are now gearing towards, the 28th of October of this year being the official go live date. So that means that all procurements started after, well on or after 28 October will follow the new rules but anything that was started prior to then.
[10:15.5]
So from this date in time up till 27th October will continue to follow the regulations it was procured under for its lifetime. So that also includes, as it says, their call offs from frameworks and dynamic purchasing systems.
[10:31.5]
So effectively a buyer could use a framework today, place a four year contract on it and that contract would be subject to PCR 2015 all the way up to 2028. So there's going to be this transition period where some of your contracts that you have will be under the old rules until they phase out or come to the end of the natural life.
[10:54.7]
And then we move into the new set of contracts and contract regulation. So that's something to be aware of. As I mentioned, since Royal Ascent we've had those knowledge drops primarily buyer focused, as I said, we've had some additional guidance. We've had the real regulations and there is still more to come, so there will be more guidance.
[11:15.2]
So we haven't had detailed guidance on some quite core parts of the legislation that we're going to look at in a moment, like the competitive flexible procedure. There is a new central digital platform which we'll talk about again in a bit more detail in a second, but that has to be released to support all of the other activity, that is coming down the line.
[11:36.0]
And we are also going to have the release of a national procurement policy statement. And this is really important in regards to your social value and sustainability offers because this is going to be a policy statement that runs alongside the legislation and it will be continued, well, not continually, hopefully, but it will be updated periodically, to adapt to new requirements, or initiatives or strategic focuses, in social value and sustainability.
[12:06.5]
So that is a good thing for us as suppliers because it's trying to provide a bit more of a uniformed approach to sustainability and social value. So we're not having to do everything for everybody. And that customer wants this and that customer wants that. It's supposed to try and provide a little bit more structure to it, which is really useful.
[12:25.5]
There is stuff happening all the time you wouldn't believe. But just while I was sat waiting for the webinar to start, I've had a ping through notification that the Cabinet Office are doing, doing some additional webinars, that you can attend as a supplier, again just giving basic overviews like we're doing now, of the procurement regulations and you know, the plans for the transition to October and stuff like that.
[12:50.2]
So there's A lot going on at the moment. There's a lot of information coming out and will continue to come out, right up until October. I will just say, however, before I go forward, we keep talking about October and it still feels like an awful long time away. However, in speaking to quite a few people, a lot of people are thinking that May is probably the last month to make some really solid action or to really sort of figure out what your plans are and what you're going to do.
[13:15.9]
Because obviously at tail end of June, we're looking at holiday periods starting potentially. Certainly, you know, there's less focus on things going into July and October. Difficult to manage big change projects like this. Everyone will come back maybe from summer holidays, it's September and then suddenly it's happening at the end of October and you've got a really small window there to sort of affect change.
[13:38.9]
Certainly, as suppliers, what you want to be doing is front loading that effort now. So don't be the suppliers that are scrabbling around waiting, right until September and October to try and do something about this and capitalise on it. Get in now and do some of the work. We're going to talk to you about at the end of, towards the end of my little spiel here today.
[14:00.6]
So, new procurement objectives, then. So I think most people on here, you know, being used to public sector tendering, will be aware of the procurement princip. So these are the principles by which public sector authorities are supposed to use to guide their decision making.
[14:17.3]
Obviously, a lot of it is process driven and defined by rules and regulations, but they also have flexibility within those. These principles are very supplier focused. You know, when these new regs came in, it's about equal treatment, it's about proportionality, it's about not being discriminatory.
[14:35.4]
Now, looking again, as I mentioned, around the backdrop of this legislation and the time period it was being created in, the Procurement act has actually done away with the word principles and changed it to objectives, which some people have kind of said that doesn't really mean an awful lot.
[14:52.6]
But obviously, as a bid writer, I look at the words, I look at the meaning behind them. And the word objectives is moving away from principles, ethos, ethics. Objectives is very commercial language. It's about results, it's about tracking performance and activity against stated, you know, end goals.
[15:11.6]
So the new objectives are delivering value for money. They are about maximising public benefit, sharing information for the purpose of allowing us suppliers and others to understand authorities decisions up front, which is great.
[15:29.2]
You know, more information for us about what's coming down the line and giving us more time to prepare and then acting with, and being seen to act with integrity. And that I think maybe might be a bit of a trying to take the sting out of the tail of highly publicised issues to do with public sector procurement that have you know, been in the news, over the last couple of years.
[15:52.9]
But again thinking about that National Procurement Policy Statement, looking at these objectives here, you know, value for money and maximising public benefit, both of those play exactly into that ideal. Some of you might also be aware that the usual acronym for deciding how to award a contract meet the most economically advantageous tender has been changed as well to mat.
[16:19.8]
So most advantageous tender. So they've removed the words economically, from that acronym and that is a nod again towards that wider benefit. So highlighting to buyers that they should be purchasing based on what is of significant benefit, to the wider public and the ultimate stakeholder, the taxpayer, rather than solely commercial decisions.
[16:44.2]
Now obviously anyone in procurement, and maybe your colleague that's online will tell you that they are obviously massively constrained by commercial factors, budgets and availability of resources. So how well those two ideals play against each other, I don't know. But there is definitely an ideological shift towards more wider benefits, rather than just commercial driven decisions, which is interesting.
[17:10.7]
So Gemma, I guess that's about whole life benefits rather than just input, isn't it? Is, is what you're getting, which is interesting for lots of people on the call. As, as long as clients allow themselves to have criteria and be able to measure that, I guess.
[17:28.3]
But we'll get into that. It's interesting. Yeah, and I think that's where the National Procurement Policy Statement comes in of trying to make that ask from. From the public sector more uniform. So it's easier for people to engage with, with. Because I have this argument all the time where people say well if I give a big supplier 100k contract or an SME 100k contract, they've both got 100k to deal with the social value side of it.
[17:53.2]
And I'm like well no they haven't because the smaller company doesn't have the time, the resources, you know, the setup to be able to manage that activity as well as a larger company does. They don't have that flexibility, economy of scale. So yeah, it's about trying to make it a bit more uniform, across the board.
[18:11.9]
So it mentioned there around Sharing information. And there is certainly a significant increase in the publication requirements from the public sector side. So they're going to have to issue a lot more notices related to the procurement and there are additional notices that are some are mandatory prior to the tender notice.
[18:37.8]
The contract notice as we know it now is going to be called the tender notice before that being released with, with an effort to share that information and to give the market more time to prepare and more awareness of upcoming opportunities. There's an enhanced duty for buyers to conduct the pre market engagement.
[18:58.4]
There's just, it's, I believe it's section 16. I don't know them all off by heart just yet but I believe it's section 16 of the Procurement act act actually lists out the circumstances in which that buyers are able to pre engage with suppliers. Because this has always been the age old problem that buyers are being encouraged to engage with the market.
[19:19.4]
However they then have that risk factor of that then tipping the balance in favour of a particular supplier being challenged on existing relationships which has always made buyers nervous of that pre tender engagement. Now the actual list covers pretty much everything.
[19:36.2]
So it states quite clearly in the act that buyers are allowed to engage on things like writing the tender documents, designing the procedure under competitive flexible procedure, getting support on how to award the contract.
[19:52.5]
So there's pretty much nothing that buyers have off limits now in regards to what they can engage on and the hope is that that will give them an extra layer of confidence and reassurance when engaging with suppliers so that they feel less risk is involved the notices associated with that engagement.
[20:12.5]
So the first new notice is a pipeline notice. So if anybody is used to bidding in Scotland they have something called the forward plan and this is sort of a move in that direction. The forward plan basically identifies upcoming procurement opportunities. The pipeline notice is any public sector body which spends over £100 million in any financial year has to publish a pipeline notice, 56 days before that financial year is due to start that shows 18 months worth of projected contracts.
[20:48.4]
So that pipeline notice will support your understanding of, of who the major players are and what they are likely to spend. It will give you that advanced notification of potential opportunities to allow you to start with business development and capture activity that will hopefully help you prepare and get in front of a tender rather than waiting and reacting to it coming out.
[21:13.6]
This is one of the areas where there's been additional guidance released last month on it and initially they said that all contracts of a value of 2 million pounds or over had to be put in that pipeline notice. So they spend £100 million overall, they have to produce the notice.
[21:30.8]
The notice has to detail £2 million and above opportunities. However, the guidance has suggested that it would be best practise for authorities to list every contract. So every contract that they're likely to advertise, they should be putting in that pipeline notice.
[21:46.8]
So that's interesting and that would be interesting to see when they start coming out, just how much detail are in those notices. Because obviously for smaller businesses you need those smaller notices advertised as well. Not just a 2 million pound plus, there's a plan procurement notice which is exactly the same as a prior information notice that we have now.
[22:06.7]
So this basically is just a notification of an individual procurement. So the pipeline is the collection, the plan procurement notice is an individual procurement. Buyers, can use it to shorten down the time frames if it's been in the market for 40 days, to 12 months.
[22:22.1]
And that again is just a notification to yourself that there's an upcoming opportunity. Possibly it's not a guarantee, but it's, it's, you know, something that they're looking into and it's an open invitation to engage. And then finally, and, I think most interestingly is there is a preliminary market engagement notice.
[22:41.1]
Now this notice is mandatory for buyers to release before their tender notice if they have conducted any form of preliminary market engagement at all. So this is giving people, on the procurement side a bit of a headache because you will have a procurement team who understand the process and the compliance and posting notices.
[23:03.3]
And then quite often they will have a batch or, numerous internal stakeholders, like maybe clinicians in a hospital, contract managers on the service contracts who are actually people interesting in getting, suppliers.
[23:20.0]
Now that is pre market engagement. Preliminary market engagement. So what buyers are grappling with now is how they're actually going to make sure that they capture all of that so that they can remain compliant and put it in the notice. If they don't publish one of these, they have to explain why they haven't published one.
[23:37.5]
And if a tender notice is released, which will be the start of the competition, that will link you back to any preliminary market engagement that has taken place. And that notice has to detail what's taken place and also the results it's had on the procurement and the tender, itself.
[23:54.9]
So that is another layer of information that is going to be available to suppliers. And it again is a new sort of check and verification to make sure everything is on a level playing field and that you get access really helpful as well.
[24:10.5]
If you're going to sort of, you know, as we all do with best intentions, have a pipeline, do the pre work, all that sort of stuff. But then things just, you know, come up that maybe you're not expecting or you know, that you didn't know were coming through. And that will ensure that you do get as much information as possible to help you decide whether to go ahead, and tender or not.
[24:29.9]
So that is a whole heap of information, that's going to be available to us, as public sector suppliers that previously wasn't available. Now onto the biggie competitive flexible procedure. I'm just checking my time because I could talk about this and I do talk about this for a day at a time doing training.
[24:48.6]
So I'm just making sure I'm giving you as much as I can, but getting through it all, so that we got time for questions. I can see there's questions flying in already. So the competitive flexible procedure is replacing all of the other procedures you can see on the screen there.
[25:04.9]
So the open procedure will remain so a single stage procedure, the negotiated procedure without prior publication is going to be called Direct Award, which is really confusing because instantly I've had lots of people already say to me, well, does that mean it's to do with frameworks or do you have to use that one when you call something off a framework?
[25:24.7]
No, it's something completely different. They've just decided to call it the same thing just to keep us all, on our toes. So Direct Award is basically circumstances where no competition has taken place and there's a whole raft of reasons why, you know, that can be used.
[25:40.4]
And again, there was a bit of a panic around that originally because it came out just after the PPE contract, issues that were well documented in the press. However, it's for things like force majeure events, another pandemic, you know, things that couldn't have been foreseen, that Direct Award can be used.
[25:58.4]
It's not a go to procedure, for public sector. So that means that all of these procedures, including the restricted procedure, which along with the Open is like the one that you will have probably engaged with most, the open or restricted procedures are all being condensed down into a single option.
[26:16.1]
So there'll be the open procedure, direct Award and the competitive flexible procedure. And they are the only three options that buyers will have to use, after the. Well from the 28th of October of this year. So, in brief, because I said there's lots more information to come out about this, we haven't had the detailed guidance, but basically the competitive flexible procedure allows every contracting authority to decide what they think is a suitable way to manage the procurement for that contract.
[26:51.3]
So they can basically create a competition that has a number of stages in that could include things like dialogue, negotiations, presentations, demonstrations, Q&As, traditional tenders, and it is up to them to determine what that looks like.
[27:09.9]
They have to still make sure it's fair and proportionate. So obviously if it's a straight stationary purchase, they're not going to invent a seven stage procedure with all kinds of dialogue and negotiation in, can however, allow for certain features like the exclusion of suppliers at certain periods.
[27:28.4]
So it might be that they have different rounds of scoring with the tenders or with negotiations or dialogue, and only certain people get through. Maybe like the top three get through every stage or whatever it might be, they can refine the award criteria that's stated in the tender, which is an interesting one.
[27:47.3]
So that means, and this is a feature, related to that negotiated procedure that we've had previously, under 2015, they can enter dialogue or negotiations with suppliers and then amend the award criteria.
[28:02.9]
They do have to make sure that in amending award criteria, that doesn't mean that certain people, who you've knocked out previously should have been reconsidered. So it's a bit of a difficult one to use in practise and they have to reissue all of the tender documents with the updated dates to whatever they've refined or changed, once they've gone through the dialogue, to all bidders to bid again.
[28:24.2]
So it's quite a complex one. But they do have that ability, as I said, they can reduce, candidates, they can have multiple stages and they can produce multiple versions of the tender. Now, all of that sounds a little bit scary on first batch.
[28:42.0]
I know a lot of suppliers are really worried about am I just going to get this avalanche now of different tenders and different requirements and, you know, what am I going to be facing here? The public sector reaction to this is actually, I don't want to say scared, but that's another adjective.
[29:01.1]
But apprehensive would probably be a good way to describe it. So in the same way that we currently mostly deal with open and restricted, because they're the easiest, most straightforward, less risky, less time consuming procurement options, I doubt that what you're going to see from day one, come the 28th of October, is every public sector body saying, welcome to my brand new procurement procedure.
[29:24.2]
We're going to start with negotiation, we're going to do two rounds of this, we're going to do four. Lots of evaluation on that. They want to keep it simple. They're nervous about trying out these new procedures and getting them wrong and being the case law or the test cases that go wrong. And also they've had these options available to them previously.
[29:41.8]
They could have always chosen to do a competitive dialogue procedure, you know, a negotiated procedure, but they haven't done them because they are for specific procurements, complex, high spend, high risk procurements. So for day to day procurement, I doubt that you'll see a sudden influx or change.
[30:01.2]
A lot of the buyers that I've spoken to over the last 12 months have been basically saying that what they're planning on doing is to just carry on doing the restricted procedure, but call it the competitive flexible procedure. So, you know, I wouldn't unduly worry that you're going to face this avalanche of weird and wonderful, procurement, procedures, frameworks as well, just very briefly, because again, there's more guidance to come out on this one.
[30:31.4]
So, a lot of us are on frameworks. Get business from frameworks. And just a point of note that they are creating two versions of them, from October 28th onwards. So one is a closed framework, which is exactly what we have now.
[30:48.4]
Do a tender to establish it. It runs for four years. There's a call off mechanism by which contracts are placed or awarded on that framework, then they are reserving the right to also do an open framework, which means that the buyer has the opportunity to reiterate that framework.
[31:08.7]
If they believe that by running another competition at the end of the firm, first four years, they would have just ended up with the same suppliers with the same terms providing the same services or products. So they have to state up front, in the initial tender notice whether it's going to be an open or closed framework.
[31:27.3]
And they have to stick to that. So they can't run a closed framework and then say, oh, by the way, we're going to convert it to an open framework. They're not allowed to do that. So you will know up front, and there is still some back and forth around how they're actually going to manage that rollover into a new iteration of the framework, in an open framework.
[31:46.9]
So for example, will it include new pricing? Will they Allow new suppliers to enter it at that point? Will people be allowed to exit at that point? You know, how are they going to make sure that people remain, you know, within the right side of any selection criteria or mandatory criteria that was made part of the competition.
[32:06.2]
There's a lot to still unpack, unpack there. But there is a, fundamentally this ability to do the two different framework options. Oh, sorry, skipped right over there. Yeah. How it work without distorted competition and constricting markets is not clear because you know, again, unless they allow people to roll in at any breaks in the contract, it's, you know, running an eight year framework is sort of not in the best interests of public finance and competition in my opinion.
[32:33.5]
So be interesting to see how that works. Another scary headline that you might have seen or heard about is the supplier debarment process. So this has caused a lot of panic and a little bit of worry in the supplier community.
[32:49.9]
So supplier debarment is basically going to be a list of suppliers that are on the wrong side of the mandatory and discretionary exclusions. And just a terminology change again, again, mandatory exclusions, you're going to now be called an excluded supplier.
[33:07.2]
Discretionary exclusions, you will be called an excludable supplier. So the basic premise remains the same. Mandatory exclusions means that you cannot bid for public sector. Discretionary exclusions means that you can give yourself cleansing, cleaning, whatever they call it, evidence, and you are then able to still do work with a public sector buyer, but they have the right to say no.
[33:30.0]
Basically they can take your justification or not. There is a whole process involved in getting onto this debarment list. So basically what would have to happen is for you to be on the wrong side of these anyway.
[33:46.5]
The only other way to sort of enter it is to become subject to one of the exclusions at some point, obviously during the life cycle of the contract. So if you suddenly become, you know, there's breach of labour law, happens while you're two years into a four year contract and you end up on the wrong side of it, you can end up there.
[34:07.0]
There's a couple of new exclusion grounds. So, corporate manslaughter and corporate homicide have been added to the list of exclusions. Cartel offences have been sort of just rebadged I think. But there's specific mention to that. And also interestingly ancillary offences which I'm not really sure how they would actually prove this, unless you had a, you know, know Conspiracy conviction.
[34:30.5]
But, you basically can be found guilty by association as well, that if you've sort of not done the thing yourself that. But you've conspired, to sort of other people committing offences, then you are also deemed to be on the wrong side of them.
[34:47.4]
Interestingly as well, for some companies that maybe have an international base or a parent company, that you have to refer back to, what they've also added is that the same offence that is committed outside of the uk, also now counts as an exclusion.
[35:04.1]
So previously it was just if you'd been convicted of it under UK law, if your organisation has a global footprint or is operating outside of the uk, and you've committed one of these offences in Germany, Spain, America, wherever, you now are also subject to the wrong side of the, exclusions.
[35:26.1]
Final point on that. The exclusion grounds now also cover ongoing investigations as well as known convictions or events. So this is one to me where I think that they need to provide more information and support to suppliers.
[35:41.3]
Because, say, for example, if you had an employee took you to a tribunal, that's an ongoing investigation as to whether you have been breaching Labour law. So do you have to declare that and become subject to the excludable discretionary exclusions?
[35:57.0]
That seems a little bit harsh. You know, or is it just talking about ongoing investigations into criminal matters, the mandatory exclusions, it's not 100% clear yet what that actually means. Also, they are asking for standard information in relation to these.
[36:12.4]
So if you do have to say that, you know you're in breach of one of the, exclusions. You have to give specific information for each event and each person. You can't just give a general overview of kind of, oh, this is what happened and this is what we do about it. It. They want to know specifics about it.
[36:30.8]
Just a final point on debarment. Poor performance is one of the discretionary exclusions and the reason the debarment list, obviously most of us here would be like, we wouldn't be, you know, supplying to the public sector and ticking, oh, yes, I've been found guilty of all this stuff and, yes, we've all done all this bad stuff because we know we need to be on the right side of these exclusions.
[36:50.6]
Now, poor performance is a really dicey area, potentially coming up, after October, because what an authority has the right to do, is they have a right to use the contract's performance notice, which is another new notice, to notify or to trigger the procedure to get you put on the supplier debarment list.
[37:15.4]
Now, what they have to do is they have to prove that you have, they've given you an opportunity to improve, and you fail to meet, you know, a quality improvement plan, action plan or something like that. But then if you consistently then underperform, they can trigger off a process which is sort of a very, you know, long, long.
[37:36.4]
It's not that they just push a button and you end up on the debarment list. It basically gets reviewed by a government minister. You're allowed to make representations for yourself. But ultimately that government minister, can decide that you need to be put on that debarment list.
[37:52.6]
There's an eight day standstill period by which you can challenge it, and you can appeal the decision. But ultimately, poor performance on one contract could potentially snowball to you being subject to these exclusions. And then once you're on that exclusions list, that might stop other supply, other public sector buyers doing business with you.
[38:12.7]
And it also means that all of the buyers you have contracts with technically would have to review whether they want to continue contracting with you, as a supplier subject to a discretionary exclusion. So there is potential quite a big snowball effect there, for poor performance, which some people might, be a little bit worried about.
[38:32.6]
Just, just a couple of specifics. Sorry, Gemma. We've got a couple of questions. The disbarment, would that include things like health and safety investigations? Somebody had asked there is do, you know what? Interestingly, I don't think I would have to double check.
[38:48.9]
I'll double check the final list of exclusions, but I think that that would fall under breaches of Labour law. So, yes, I think that if there were ongoing health and safety, that would fall under the Labour law discretionary exclusion, I would naturally think so too.
[39:04.6]
And then, is all this applicable to defence procurement? I think it is, yes, it is. So that's an interesting, Well, interesting if you're into procurement law, but because, currently there's lots of different sets of regulations. So I've mentioned public contracts 2015.
[39:22.4]
There are separate, rules and regulations currently for Defence and utilities and concessions. They're all being brought together under the same act. So the Procurement act now covers all of those sectors as one document. There are certain dispensations for certain sectors.
[39:40.5]
Because I know obviously the MOD has its single source, source, process as well. So again, that's something that we haven't had a specific guidance document that says this is specifically where defence is different or deviates from the pathway.
[39:56.0]
So at the moment the vast majority of this will be applicable to all types of procurement. Good. Okay, I've got some other questions but carry on and I'll wrap them up at the end. All of this has been supported by the central digital platform.
[40:12.4]
So that is going to be built up from the Finder tender service currently. And the idea is that all buyers and suppliers will have a profile on there. All of the buyers publications will get put against them as an authority.
[40:29.7]
You as suppliers will also have a mandatory requirement to be registered on there and have a profile on there. If you want to contract with the public sector, they are not allowed to contract with anybody who is not on the system because then what they are going to do is award contracts that are then tagged to you.
[40:45.9]
And this central digital platform is basically going to be this MI data and information exchange point where things like say for example you have your supplier profile. If you were put on the debarment list that would flag up on your profile. Technically I believe that what would happen then is you would be able to, so maybe look at a competitor and you'd be able to see all the contracts that have been awarded to them because it'll be tagged against them.
[41:12.0]
There is also plans, although this hasn't been sort of publicly, I think, I think a little bit of has come out, but not 100%. So the idea is that there's going to be something within the central digital platform called the supplier Information Service. And that service is basically going to be the selection stage, pretty much bar project specific questions.
[41:35.0]
So we're used to having the standard selection questionnaire. Again, if any of you of you systems like sell to Wales or Public Contract Scotland, you'll know that they've got inbuilt capability. So they pull out information from your profile. You can have a profile of like all your ticks for your mandatory and discretionary exclusions, your standard stuff like your references and accounts and blah blah, blah.
[41:56.5]
This system is going to do that as well. And I believe that the profile that the system will hold your company's profile of selection stage information. You will then generate a code and then when you go to transact and complete a tender you will be able to give the buyer that code for them to access your information.
[42:17.9]
There is also potential for you to download it and then upload it as part of your submission as well. Again, this is sort of stuff that is in development and testing, at the moment, but that is, that is sort of the direction of travel. It's heading in. And to be honest, it's long overdue.
[42:33.9]
You know, the approach, if you look at things like the way it's worked in Scotland for years and in Wales, you know, they. They have these things in place. They've had them in place for a long time. If I do a procurement in Scotland and I want to award the contract, I click, let me award this contract.
[42:49.4]
It pulls through all the information from the contract notice for me and then it says, who do you want to award this to? And there's a list of everyone that's. That's put a tender in and I just click the names of the people. It pulls all of their information in from the system. So it's moving things forward to where it probably should have been about five to 10 years ago, to be honest.
[43:07.8]
But it's digitising procurement to another level. So. Gemma. Sorry, we've got a question on that. Specifically, do you think this replaces the 4 million other portals that local authorities and procurement bodies use? Is it going to be one version of the Truth, then?
[43:26.0]
So, it's hard to know, to be honest. Officially, no. So, the team that are building the new central digital platform have been working really closely with the eenders, as they're called. So your people, like Delta and Proactis, and intend to obviously make sure that what's being published in their systems can be fed directly into.
[43:49.7]
So technically, what will still happen now is that buyers will create, say, like a tender notice in their portal, say it's Delta, and then that Delta system will ping it into the Finder tender service service. Because the Find A Tender service doesn't manage the actual procurement activity, it just does the publication.
[44:10.7]
So you will still be using your ESENDER to answer the questions, to upload the documents, etcetera, at, the minute that is just a publication tool, whether it transpires there in the future, I'm not sure. Okay. Does that help? Yeah, it does help.
[44:25.9]
Thank you.
[44:29.8]
So just looking at each of those items there and what we can actually practically do about them now, you could use this as a checklist or a sort of activity plan, you know, to sort of go away with, after today and start working on, you know, what you need to do.
[44:44.8]
So, first of all, regarding the timeline, I would have a look at your existing contracts when they're due to end and maybe get an idea of how buyers might react to that. So I've had a lot of anecdotal information that people are having potential stuff that they're expecting to get in the second half of this year.
[45:03.2]
They're already getting tenders released early for it now. So a lot of buyers are trying to pull forward their procurements ahead of the 28th of October so they can let a four year contract under the old rules and give themselves a cushion of time before they have to start working under the new Procurement Act.
[45:20.2]
So I definitely have a look at what you're expecting in your pipelines and you know, what might potentially change about that. I think it's a good time to review your own social value and sustainability offer. There is a new, there is an existing version of the National Procurement policy statement from 2021 and it's largely going to stay the same.
[45:41.7]
From what I've heard they are going to release a new version of it in time for October. But that should shows three priority areas to work on. So I think that you know, looking at that, looking at what you're offering and seeing how aligned it is and what you may or may not need to change to be, have an attractive offer come October, especially given the additional focus on that additional factors maximising benefit would be really good.
[46:08.8]
And also start recording the work you're doing. Now. I always constantly am working with suppliers, buyers as a consultant who are doing amazing social value work but aren't actually recording it effectively or I don't have any facts, figures, data, evidence, examples to use in other tenders.
[46:24.3]
So because it's going to become more important, you need to make sure that you actually capitalise on that and have good stories to tell. Obviously pre tender engagement, as I mentioned when I did the slide, this is a core place for you to start looking at what you can do.
[46:42.3]
Pre tender buyers will start changing their behaviour already. They'll be more open to engagement and link there to the competitive flexible procedure. Buyers are being encouraged to openly engage with their suppliers on how they're going to approach this, what they're going to change, how they're going to implement it, the types of procedures they're going to use.
[47:00.8]
And so I think that this is a unique opportunity where the door is already half open. Usually it's a battle to get that meeting, to get them to speak to you, to have something to talk to them about about this is the doors open, you've got an agenda there you've got specific things you can have intelligent conversations with them about and move yourself into that place of influence and that kind of position where you know you're a trusted known supplier ahead of tenders, coming out later on in the year.
[47:28.4]
Find out equally same as the contracts really what's happening with frameworks that you're on that are due to expire, what's the plans for them, you know, what are they going to turn into soon, related to debarment. Review your organisation, under those new requirements and think about any issues that you already have related to contract performance that you may need to very quickly deal with before it becomes public.
[47:53.0]
Consumption how you're doing and how you're not doing on your contracts. And also keep an eye on that central digital platform, make sure that you signed up to it as soon as possible, make sure you get a profile in it, to ease that initial first wave of procurement after 28 October.
[48:08.9]
October, so that you can show yourself as a supplier that's ready to go and ready to perform. Obviously we are running full day training courses. Jeremy and I are sort of working on this together in collaboration. So we. That is a whistle stop tour. You know, there's so much underneath that there's so much I haven't covered like dynamic markets and the other publication requirements and, and things like that.
[48:31.2]
So, you know, please do get in touch and either Jeremy or I will have a, you know, a discussion with you about what we can offer you and you know what, you, you might benefit from finding out more detail and getting a more advanced personal plan together of how to action these changes.
[48:49.0]
So Jeremy, I can see there's 13 questions. I know we've got 10 minutes left so I will try and answer as quickly as I can. Do you want to rapid fire? I can wrap some of them up as well. So I just answered one by text, but someone was asking if they're on an existing framework, does it switch to the new regs?
[49:09.6]
No, it doesn't. It stays under the rigs we have today until it expires in three or four time. Yes, we'll provide a copy of the slides, to everybody and the recording actually. So you'll get an email after this session with some links in it, a link to a recording of the session and a download of the slides and then some links into how to contact us and Gemma for more support moving forwards.
[49:36.9]
So we've dealt with that. Let me click that off. So, regarding the pipeline notice and the requirement to publish projected contracts to be procured, is there any detail as to how public sector bodies will be measured against this?
[49:54.5]
I guess as in published pipeline versus actual. Particularly with regards, to the point around best practises being that all intended contracts are noted, as opposed to just those above 2 million. So how are we going to hold this account?
[50:10.9]
I guess. Yeah, I know and I think that this is just a continual you know, battle with public sector is. It's a mandatory requirement. That's what I'll say. So it is a mandatory requirement. It's not an optional requirement. So it's something that they have to do.
[50:27.1]
And there is going to be put in place, you know, along with the supply is being held to account through supplier debarment, there is going to be a new procurement oversight unit which is brought in specifically to sort of regulate and monitor behaviour and buyers can be publicly reported to and named and shamed on the portal as well for not following good practise.
[50:47.5]
So if you did have somebody that was continually not producing that pipeline notice or hadn't produced it, you could, there's a channel there for you to tell on, on them. Very good. And then Rita asks an aligned question about does this mean that we don't need to be registered with all of these portals all over the place like we have been before?
[51:09.4]
Is it going to be one source of the truth or what do we think? No, you will still, you know, need to be registered because as I said, they're still managing the procurement itself. So in the same way, now that when you go into contact contracts finder or find a tender, you'll search for the opportunity and it'll say here's the contract notice text.
[51:27.9]
Go here to get the full details or log in here to, you know, participate in this tender. That will still be the case under this new system. Okay. And if you're, if you're a group of companies, so you've got a parent company and then different brands underneath it.
[51:44.7]
Yeah. Is it one profile or however many profiles on the platform? Platform, yeah, I think that that will be to be decided. I know they have the same problem. You know, within Public Contract Scotland, for example, that I'm familiar to working with, where you'll have multiple entries for the same company or at the minute it's.
[52:04.2]
Or the way I think it's been designed is it's a single entity. So you would be you know, say if you were part of a subsidiary of a parent company, you would just register as you. You and the parent company, if they wanted to bid, would register as them. Yeah, because you could bid as different entities, couldn't you?
[52:22.8]
Yeah, there's probably a whole nother rabbit hole we could go down on joint ventures and things like that, but we'll leave that, see how it fleshes out. Are there thresholds for PPN and pnen? Yes. So the ppn.
[52:39.2]
So those two notices I mentioned, the pipeline notice, is obviously related to the authority spend in total. But the other two notices, the plan procurement notice, and the PME notices, are for the above threshold contracts.
[52:57.5]
That's not to say that, you know, I don't basically, yeah. So they're therefore above threshold notices. So when it comes to below threshold contract notices, there's only two stages again. So they have to do an initial tender notice to start the competition and then they have to award the competition.
[53:14.3]
Competition. The competition at the end of the procurement. So they don't qualify. So. Yes, sorry, short answer. Yes, they're only for above threshold contracts. That's right. And do we know when the central digital platform will be available? So what I've heard from government sources is that they are planning, as all good software developers do, to have a minimum viable product ready to go to market on the 28th and then there's a further development pathway to slowly roll out the more fancy elements of it.
[53:43.5]
So what I'm imagining that means practise is that, for the 28th of October, the system will allow you to register, and it will allow you to find notices, and all the new notices will be published there, having that extended selection questionnaire profile.
[54:03.9]
And some of the other parts of it I think will take longer to happen in practise. Okay. Was there anything more to do with the platform? When the prelim notice is sent out, will it include information on further planned market engagement or just what's happened so far?
[54:27.1]
Yes. So, there is a bit of duality there. I've sort of, again, people might have seen me ranting about this on, on my LinkedIn, things. But so there, there is a bit of a crossover so that the preliminary market engagement notice can say we're about to, you know, we want to engage with people.
[54:44.0]
The PME notice can also start engagement, but also record engagement. And even with the additional guidance, I'm still not clear, you know, so say if you've used it to engage the market and start engagement. Do you update that notice once you've done the engagement?
[54:59.9]
Do you have to do a second PME notice to say that you've done the engagement? It's not 100% clear still in my head. But, But yeah. So basically it can be used as the call to competition, but, well, the call to engage, I should say. Sorry. As well as, notifying what's already happened.
[55:16.5]
Okay. And what about foreign companies and SMEs? Will they be able to get access to this information and be able to tender against us British businesses? Yes, yes, absolutely. There's no change there.
[55:32.0]
So although we're not part of the European Union anymore, we are signed, signed up to the gpa, under the World Trade Agreement. So we are still going to be a part of, of that. Which means that we have open borders regards to, you know, procurement and people being engaged in, in the procurement process.
[55:49.8]
There are a couple of other acts going through Parliament at the moment which are around, you know, buying British and, you know, stuff like that, but they're not law yet. Yeah, fair enough. And sorry, Heather, I just marked your question as answered and I didn't mean to. I was going to answer it by text.
[56:05.5]
But in terms of if you've got different disciplines in a company, you register at an entity, a bidding entity level, it doesn't matter if it's different parts of your business coming together or bidding etc, it'll just be a bidding entity, entity level. So Anne was asking.
[56:23.6]
So suppliers can register from 28 October only, not before. No, that's not the case. We can register before before, can't we? As soon as the platform live. Yeah. So if you go into the find, attend the service now, you can register as a supplier.
[56:39.4]
So I would probably do that because I imagine that they will do bulk mailing to anybody that's already registered as a supplier to say now you can come in and do this or you know, go here to, you know, do the next steps or whatever that means. But again, it's something that they haven't actually given the detail on yet.
[56:56.6]
So there be. Will. Will be. It's one to keep your eyes on, to make sure that you're, you're ready for it when it lands. But you can, as I said, you're just going to find a tender service top right corner. You can register as a supplier there anyway. Okay. Hannah had asked about, how does this additional set of measures help SMEs looking to bid for business.
[57:18.8]
Surely this adds to their bidding cycle. Well, sort of. I think this provides greater visibility of what's coming. Hopefully much better quality quality of pipeline information so that small, medium businesses and actually medium so, you know, up to level below the sort of tier ones can really plan their activity.
[57:38.3]
Well, everyone actually. But we can pick figure out what our top three top five deals are in a year and deploy real capture onto those. And we can understand what our forward cost to tender is likely to be or what their level of resource course is likely to be, with more confidence.
[57:58.3]
It's. It's about, you know, that I think why people are asking about the quality of pipeline information is that this is about certainty, isn't it? Certainty of pipeline, visibility of pipeline. That's a fantastic business enabler. So I think the pros outweigh the cons.
[58:14.6]
If this all flies. I think your point, we'll wrap up. Gemma. I think I might pick up a couple of the questions as we go, but. But, there was a couple of points I wanted to make. Just to reiterate then, with the summer break that's coming, you've actually only got May and half of June and then maybe the front end of October to really deal with this with clients.
[58:36.5]
And the advice, I did a podcast episode on this, whilst it was just the primary legislation with Rebecca Rees from Frowers and Hamlin top procurement lawyer, and her key advice was get ahead of this thing with clients. Clients, help clients understand what's gone well, what's gone not so well with their procurements to help them inform their approach, particularly in the use of the new competitive, flexible procedure.
[59:03.6]
And then on the flip side of it, in the challenge, the fear in the clients. Gemma That you'd mentioned, clients are worried about this and probably will just use a flavour of the restrictive procedure going forward because, one thing that is different that, Rebecca talked about was that under the current regs that we currently exist in, the legislation is king.
[59:28.5]
And the ITT document is secondary to this, whereas under these new regs it swaps. So the ITT is king. And of course we all know clients can be a bit variable in quality of ITT documents. So if a procurement goes wonky and you to take the client to court, that's quite a thing.
[59:47.5]
That's quite a risk. And so you really need to get under the skin of this with your business and really understand what it means. And really help coach your clients, particularly where you've got key deals. You're not going to be able to deal with all of your clients on all of this.
[60:03.3]
You're going to have to pick your battles with the time that's left. I mean, you know, APMP UK have stood up a new procurement, procurement group to do some work on this and I don't think they're going to have time to have any impact at all. It's too late. You know, Crown Commercial Services aren't going to talk to them about this stuff at this point.
[60:18.9]
The training stuff's already out. So hopefully, you know, they can help members get up to speed with this stuff but they're gonna have to move quite quickly because it's already lastminute.com isn't it? So we just need to be aware of that. Pick your battles I would say and particularly your key recompete for key deals that will definitely be procured after the 28th of October.
[60:43.2]
You need to get ahead of this with clients and really understand what their capability and capacity is to deal with this change. Because it's definitely coming and you know the government are punting out a shed load of training for government organisations but they haven't really got the capacity to deal with their current workload, let alone be trained, trained in all of this stuff.
[61:06.8]
So it's going to be, it's going to be an interesting year or two I think in, in how this pans out. Yeah. Was there anything else? Oh, just on my favourite subject, dynamic purchasing systems. Do they still exist after this? They are changing the name of them to Dynamic Markets.
[61:26.4]
So that is another change that we didn't have time to go into today. But the idea is that they're trying to, trying to extend those to have more broad use. So that what they ideally want is a dynamic market already set up for every product and service in the future. So that we're basically curtailing the selection stage.
[61:43.7]
So dynamic purchasing systems and markets will be the selection stage done and then people are just doing the ITT stage. Interestingly as well, when using the competitive flexible procedures, buyers can reserve the right to only transact with suppliers on an established dynamic market, as part of that process.
[62:05.8]
So they can actually curtail the competition from anybody not registered. So depending on how they roll out, because we haven't seen them actually they don't exist yet, it might become a future. Must have to be in a dynamic market for your sector. Okay, we're out of time Gemma.
[62:22.9]
But actually there's just one question that we should ask. Ask because it's come up a couple of times. Do after October 28th if you're on a current framework that's been procured, let's say it was procured today and it's got four years to run, do the mini bids through that framework have to work under the new regs and will they need to be.
[62:42.8]
I think Jeremy's just frozen up there. I think he was asking about the call off bids and whether they actually fall under the new regs or the old. So any call off contracts remain part of the regs they were purchased under.
[62:59.3]
So the framework is established and that plus all call off contracts will remain under the old regulations until that framework itself expires. Even when the framework expires, if that contract goes on past it continues under the old regs.
[63:16.0]
So anything. And I just saw the question there from Paul asking about charging fees as well. Just while we're on the topic of framework so, so yes within the bill it does also reserve the right for buyers to charge a fee, but only when business is being transacted off the framework.
[63:33.7]
So they can't charge you fees to join the framework because obviously you're already speculating to accumulate by putting the bid in to get on the framework but there is allowance in there for once they start calling the work off the framework to charge fees. So that is another thing that is coming in as well.
[63:50.6]
Well it's all fun and games isn't it? Lot going on a lot and that's why this, this hour isn't enough like we get like that's why we you know we've done the day training session is because there's so many things and there's so many nuances like people are talking there about you know devolved authorities about specific sectors about specific types of contracts and that's why it's really important to, to really understand what this means for your company in your market with your particular buy buyers.
[64:17.7]
Yeah, absolutely. Okay, sounds like a plan. So we will come back to you with an email with a link to the recording slide deck. Thank you to everyone for your thanks and things. And do reach out if you'd like some support. You know we, we can support you in your conversations with your business about this.
[64:37.6]
Get us in to talk to your board etc and we can help you really set yourself up for success because it's going to be, be quite something that changes the direction for some businesses and for some clients, I think so. Thank you very much. Thank you very much, Gemma.
[64:52.6]
Pretty spectacular presentation that. And we will be in touch. Very best of luck with it. Thank you. Have a good weekend. Thanks all for your time. Bye. Bye.