Public procurement has never had such a high profile as it has in recent months and most especially since the decision in Good Law Project and Others v Secretary of State for Health and Social Care ( EWHC 346 (Admin)). However, in practice, has anything changed?
As has been well publicised, in the above case the court found that the SSHSC had breached both regulation 50 (Contract award notices) of the Public Contract Regulations 2015 (“PCR”) and the Government’s own Transparency Policy. There was also potentially a breach of regulation 108 (Publication of information on Contracts Finder) but the application to amend to include this element was refused.
Regulation 50 requires contracting authorities to publish a Contract Award Notice “not later than 30 days after the award of contract or conclusion of the framework agreement”. This is a specific obligation with a clear deadline. As such, and as the court held, irrespective of the reasons for not complying with the maximum 30-day deadline, any failure to do so will amount to a breach of the PCR.
Whilst regulation 108 also contains an obligation to publish a Notice, it is distinguishable from regulation 50 in that it only requires that publication occurs “within a reasonable time”.
Following the decision in this case, contracting authorities need to not only ensure compliance with regulations 50 and 108, but also with any internal transparency policy or procedure that contains requirements for publishing documents. Whilst the court acknowledged that some policies by their own terms leave the decision-maker with an element of discretion as to whether they need to comply with the policy, whether any such policy in practice confers such a discretion will be a matter of construction for the court. In contrast where, as the court held in this instance, the requirements in the policy are framed in precise terms there is a common law duty to comply with the policy absent good reason to depart from it.
Contracting authorities should also be mindful that a lack of awareness of the requirements of the policy or the fact that there is no conscious decision to depart from it will not absolve the contracting authority from liability for failing to comply with the policy.
Transparency is considered important not only to enable competitors to understand whether the Regulations have been complied with, but also so that oversight bodies, Parliament and the public can scrutinise expenditure of public money. Consequently, transparency obligations are considered to serve a vital public function and, as the court held in the above case, that function is of no less importance during a pandemic. It is noteworthy that increased public sector accountability and transparency is a key aim of the not-for profit campaign group who were the claimants in this case. We will consider the grounds on which someone other than an economic operator might be able to challenge a contracting authority’s procurement decisions, in a separate article on this case.
It is not all bad news for contracting authorities however and in emergency situations contracting authorities can utilise the options set out in PPN 01/21 – Procurements in an Emergency. This PPN recognises that in exceptional circumstances contracting authorities may need to procure goods, services and works with extreme urgency and without competition. This does not mean contracting authorities are permitted to breach or deviate from the PCR or internal policies, but that they should be looking to apply the options already provided within the PCR, such as using regulation 32(2)(c).
Nevertheless contracting authorities must be aware that the emergency does not absolve them from the obligation to publish a contract award notice on Find a Tender Service nor to retain proper records of decisions and comply with regulation 84.
SP Emergency Procurement Handbook
Lorraine Spurling is a Senior Associate at Sharpe Pritchard LLP.
For further insight and resources on local government legal issues from Sharpe Pritchard, please visit the SharpeEdge page by clicking on the banner below.