Part 2 of the Act details the core principles and objectives that are to shape contracting authority approaches to procurement practice.
Principles
Under the old regime, a contracting authority owed a duty to suppliers to run a procurement in a way which upheld the principles of equal treatment, transparency, non-discrimination and proportionality. Although expressed differently, these concepts in effect will continue under the Act.
Section 12 sets out new procurement principles and objectives to which authorities must have regard whenever carrying out a fully regulated covered procurement.
These include and extend the previous procurement principles mentioned above and are as follows:
- Delivering value for money
- Maximising public benefit
- Sharing information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions
- Acting, and being seen to act, with integrity
- Considering whether barriers exist to the participation of SMEs and whether these barriers can be removed or reduced
There is now no express reference to proportionality as an objective, although many individual sections of the Act do require an authority to ensure discretion and flexibility are exercised in a manner proportionate to the nature, cost and complexity of the contract.
The section also sets out an express requirement to treat suppliers the same unless a difference between them justifies different treatment (which mustn’t put one supplier at an unfair advantage).
It also confirms that when applying the principles to a procurement, the phrase “a procurement” now refers to all steps involved in both procuring and managing the contract, covering all steps through to contract exit.
National Procurement Policy Statement
Section 13 covers the National Procurement Policy Statement (NPPS) and states that a contracting authority must have regard to the NPPS that is current from time to time.
The government has announced its intention to write an updated NPPS and has delayed implementation of the Act until 24 February 2025 to facilitate this.
This duty to have regard to the NPPS does not apply where awarding contracts under a framework or dynamic market. Also, private utilities are not required to have regard to the NPPS.
The Act does not expand on what “have regard to” means in this context, although "have regard" duties will of course be familiar to public bodies in other areas of law (eg the public sector equality duty). It's likely that the "have regard" duty will be satisfied if the authority can demonstrate that it has sensibly and fully considered the NPPS in its procurement planning, and has documented the detail of this consideration.
The Act puts the NPPS onto a statutory footing, although guidance on the NPPS confirms that if an authority fails to demonstrate that it has had regard, it’ll not be possible for a supplier to bring a procurement claim for breach of the section 13. This will only be actionable by way of a judicial review claim outside the remit of the Act itself.
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