Agenda item

Karen Middlebrook, Head of Procurement, presented an update on some of the key activity delivered in the last 12 months by the Procurement Team to ensure robust procurement activity was undertaken across the Council.  The report highlighted 3 key issues:-

1. The Procurement Bill

-        Had received Royal Assent in October 2023 and was now referred to as the Procurement Act 2023.  The new Act would govern the regime the Council would be required to adhere to where procurement activity was above the relevant threshold

-        Some exclusions would still remain e.g. contracts referred to under the Light Touch Regime where the full application of the Legislation was not required, but at present it remained unclear as to what parts of the Legislation were relevant or not. 

-        The formal implementation date for the Act was still to be confirmed but estimated to be October 2024.  Until such time the current regime still applied

-        It included new objectives for public procurement that must be at the forefront when services were considering procurement requirements

-        The changes from the current Public Contracts Regulations 2015 to the Procurement Act 2023 were significant and moved procurement activity away from what could be considered as a transactional function into a strategic space.  Focus was now being given across the entire procurement lifecycle rather than just the procurement phase

Key Changes and Challenges of the Procurement Act 2023

-        Pre-procurement considerations i.e. early supplier engagement and pipeline publishing requirements

-        Changes to procurement procedures and routes to market

-        Competitive Flexible Procedure

-        Changes to assessment and award

-        Contract management and governance

-        Planning for the changes

2.  Provider Selection Regime

-        Came into effect 1^st January, 2024 The Health Care Services (Provider Selection Regime) Regulations 2023 (“PSR”)

-        The PSR removed procurement activity in relation to health care services totally from the current Public Contracts Regulations 2015 and the future Procurement Act 2023. 

-        Those contracts that fell within the scope of PSR would be defined by the use of Common Procurement Vocabulary (CPV) codes

-        If a contract was to fall within the scope of PSR the legislation would apply irrespective of value

3.  Ethical Procurement Policy

-        The Policy had been updated and refreshed to bring it up-to-date with the Council’s current position

-        The update/refresh would take place on an annual basis

Discussion ensued with the following issues clarified:-

·        A briefing session had taken place with the Strategic Leadership Team to inform them of the planned changes with a further presentation to be given at one of the Wider Leadership Sessions to engage and raise awareness with the wider management cohort of the organisation

·        There were still a lot of unknowns in relation as to how the Act would operate in practice.  It would be underpinned by further secondary legislation (Regulations) but had not been realised as yet

·        Detailed training for practitioners was not yet available although the Cabinet Office had committed to 4 levels of training

·        An Authority could introduce stages of negotiation into the procurement process (competitive flexible procedure).  Rotherham would monitor the procurement business case for contracts £100K and above and, before it was reviewed by the appropriate Assistant Director, include why it was thought that procedure was appropriate in that case

·        Work was being undertaken currently to identify those procurements that would happen/planned around the October date and ideally startethe process before; any procurement commenced before the October date would be dealt with under the current Legislation.  Any after October would be under the new Legislation.  The Service needed to fully understand how the new process worked before procurement took place.  Until officers had had the detailed training it was difficult to advise on what the new Legislation looked like

·        There were 2 types of implications for not complying with the new Legislation.  Firstly if the Service had done something fundamentally wrong there was the risk of challenge from the unsuccessful bidder.  The supplier would need to demonstrate what the Service had done wrong from a market perspective.  Secondly, if the supplier did not want to challenge the Service in Court, there would be a new unit established by Central Government,  Procurement Review Services, which would explore the issues raised by the supplier and may result in an audit of the action plan to address procurement activity going forward

·        It would be a challenge from a resources point of view in maintaining the status quo and managing services currently operated as well as learning the new Legislation

·        There had to be acknowledgement nationally that given the lack of clarity around training for local authorities it would be difficult to fully implement by 1^st October, 2024.  It was hoped that there would be further announcements between now and October pushing back the deadline

·        The South Yorkshire and Humber Strategic Procurement Group met every 6 weeks where the main focus of discussion was the Procurement Act.  Best practice was shared as well as understanding of the implications.  Templates and documents were also shared to receive feedback from each other

Resolved:-  (1)  That the update be noted.

(2)  That the resources requirements be established with regard to the new Legislation and how it would be managed.

(3)  That a further report be submitted following implementation of the Act.