The Cabinet Office has published a number of new and updated Procurement Policy Notes (PPN) this month, relating to a range of areas from: adopting national priorities; transparency and advertising on Contracts Finder; conflict resolution to carbon reduction. In this insight, we summarise the key messages and points of action for procurement practitioners.

National Procurement Policy Statement - PPN 05/21

This is a new PPN and is likely to have a significant impact as the Green Paper and Procurement Bill develops. The PPN highlights the importance of getting prepared for what is ahead on an organisational scale. We recommend that practitioners review the PPN at a strategic level and also consider now how to build this into their policies and processes.

The key messages are:

• Organisations need to consider the national priorities set out in the National Procurement Policy Statement (NPPS) alongside local priorities. These priorities look at creating new business, jobs and skills; tackling climate change and waste; and increasing supplier diversity, innovation and resilience. This reinforces the message that procurement is not about lowest price and the need to take a broad view of value for money. Practitioners many find PPN 06/20 on Social Value helpful here.

• Policies and procedures need to be in place to determine and manage contracts. This is a key time to review your processes and governance, with PPN reinforcing the need for planning and stress-testing of procurement strategy well before going to the market, particularly for complex procurements.

• Organisations need to look at their capability and capacity to contract manage. Contracting Authorities should be looking to identify any gaps and fill these. Annual benchmarking is recommended and may be obligatory in the future.

The PPN also promises future legislation which will require Contracting Authorities to have regard to the NPPS, so it is recommended that this is considered now. It is also intended that there will be a requirement to publish pipeline procurement and benchmark capability against professional standards (such as the National Procurement Strategic Toolkit) from April 2022 for Contracting Authorities which spend more than £200m per annum and 2023 where spend is over £100m per annum.

Transparency - PPN 07/21

Replacing PPN 07/16, this is an update about Transparency and Contracts Finder and is not therefore a new PPN for practitioners to worry about. It is, however, reaffirming the obligations around publication on Contracts Finder which is no doubt in light of recent criticism of award notices not being published during the pandemic.

The key reminders are the need to advertise contract opportunities and contract award on Contracts Finder.

• As before, contract opportunities should be advertised on Contracts Finder (CF) within 24 hours of advert where you are issuing a Contract Notice on the Find a Tender Service (FTS) for above threshold contracts, or advertising in another way for below threshold procurements. The PPN flags that there should be no delay with FTS publication (unlike OJEU) so you can send notices to FTS and CF at the same time (though the FTS notice must still be published first).
• There is also a reminder that for below threshold contracts, where you don’t intend to do any advertisement, you should consider and keep a record of whether there is any cross border interest.
• For contract awards, the “reasonable timescale” to publish award notices on Contracts Finder is now stated to be within 90 days of contract award. This applies to registered providers of social housing, local authorities, NHS Trusts and Foundation Trusts (this is not applicable to the procurement of health care services by CCGs or NHSEI). Central government departments are now required to publish within 30 days of contract award.
• “Contract award” is the date the contract is signed by the last party. In guidance applicable only to central government it mentions contracts starting pre-sign up and says “contract award” should be the date the service commenced or the order date of goods in these cases. Although this isn’t included in the section of the PPN appliable to other Contracting Authorities, we suggest this would be a good practice approach.

Exclusions, Conflicts and Whistleblowing – PPN 04/21

This is another update, replacing PPN 01/19. It is relevant to all Contracting Authorities. It provides some helpful reminders about managing conflicts – an area where we are seeing more issues and potential procurement challenges.

• Contracting Authorities should ensure all commercial interactions, pre and post contract are suitably protected, as personal interests risk influencing decision-making. 
• Examples of what Contracting Authorities should do when a conflict of interest arises under the Public Contracts Regulations 2015 are:
  • The removal of a conflicted staff member from the organisation’s team engaged in the procurement process;
  • Document any measures taken in writing and include them in the procurement report.

• For exclusion of bidders, helpful reminders are the need to apply exclusions to each organisation in a bidder group, to remember to verify self-declarations and to request updates to self-declarations (e.g. during the life of a DPS).
• In relation to conflicts, practitioners should be checking their processes are robust and cover: guidance and training; declarations (a template is provided in the PPN Annex which may be helpful), conflict identification and resolution, audit and sanctions and side-supplier conflict management.
• Hotspots for conflict that should be kept in mind are where a supplier is recommended (this will be particularly the case for any direct awards) and where you call-off a Framework or DPS.
• Finally on whistle blowing, your policy should include where there are concerns about wrong-doing in procurement, including conflicts.

Carbon-Zero - PPN 06/21

This is relevant to central government only but practitioners may find aspects useful if they are looking at carbon reduction in procurement. There is a Carbon Reduction Plan Template and Selection Questionnaire examples.

What to take away

With a range of new guidance coming in, the procurement market is set for future change. The key topics procurement departments need to look at are:

• Aligning your organisation with the national priorities. You should start to review your own processes and make a plan for implementing social value into your procurement exercises.
• Building contract management into your procurement strategy and process from the outset.
• Complying with the obligations around advertising contract and award notices on both Find a Tender and Contracts Finder.
• Implementing a strategy to protect commercial interactions, mitigating the risk of conflicts of interests, as well as introducing robust procedures around conflict resolution and whistleblowing.

How Capsticks can help

With extensive knowledge of procurement law, our specialist team are always on hand to review and advise on any aspects of the procurement process.

If you have any queries around what is discussed in this article, and the impact on your organisation, please speak to Katrina Day or Mary Mundy to find out more about how Capsticks can help.