Transforming Public Procurement: Our Vision for a Safer, More Inclusive, and Innovative Future
November 2024Introduction
Some readers may be aware that the UK Government recently deferred the date of entry into force of the Procurement Act 2023 (“PA 23”) from 28 October 2024 to 24 February 2025. This was in order to allow the current Government the opportunity to consider revising National Procurement Policy Statement (NPPS), a statement which had been laid by the previous Conservative Government.
For this purpose, the new Government opened a consultation period with stakeholders on 7 October 2024, closing on 4 November 2024. Our firm has participated in the consultation process and this note summarises our contribution.
Our starting point is our view that public procurement is more than a matter of contracts and cost savings; it is a tool that can shape society in profound ways. Our submission to the National Procurement Policy Statement (NPPS) consultation reflects a commitment to using procurement as a force for good—ensuring safety, promoting social value, encouraging collaboration, and driving innovation.
What is the NPPS?
It is helpful before getting into it to explain exactly what the NPPS is and the purpose it serves.
Pursuant to S 13 of the PA 23, the Government may publish a statement setting out the Government’s strategic priorities in relation to procurement. Where published, contracting authorities must have regard to it when carrying out a procurement. There are certain exceptions, such as where a call off contract is commissioned under the Framework Agreement.
How authorities achieve these aims will be at their discretion and it is unlikely they will face sanction for not considering it adequately. Nonetheless, the NPPS can serve as a useful reminder to authorities of the broader societal aims of procurement and how it fits with wider, overarching policies.
S 13(8) affords the Government the power to withdraw and replace the NPPS, a power which it proposes to exercise on this occasion.
Consultation questions
The process asked four substantive questions. These are set out below, together with a summary of our responses.
1. How can mission-driven procurement help us achieve greater value for money for the taxpayer in the delivery of public services?
In our view, value for money shouldn’t be reduced to a numbers game where the lowest bid wins. Instead, it must reflect investments that are safe, sustainable, and aligned with the genuine needs of the public.
Clarifying VfM vs. ‘Most Advantageous Tender’: We asked ourselves what the difference is between these two concepts, since the PA 23 requires authorities to achieve both. Our first point is that the NPPS must distinguish between them. To our minds, VfM focuses on long-term impact, emphasising outcome-based procurement to enable effective and innovative solutions. By contrast, the “most advantageous tender” is about selecting the best bid within the criteria set by the authority. This distinction is vital to ensure public money serves real needs.
Preventing Project Failures: This is in some ways linked to the first point. The UK has wasted millions on abandoned projects (the Garden Bridge in London being the best example, where millions of pounds were wasted on an abortive project led by a former Prime Minister while he was London Mayor). We emphasise in our response that the NPPS should require thorough needs assessments and robust stakeholder engagement to prevent such costly errors. Needs assessment is a recommended part of a procurement process but not a mandatory one under the statute. Strategic planning must be more than a suggestion; it should be a fundamental principle.
Lessons from Grenfell: The Grenfell Tower tragedy is a sobering example of the catastrophic consequences of prioritising cost over safety. The inquiry revealed how cost-cutting and a lax selection process led contractors to use dangerous products in the construction design. Sadly this ultimately claimed the lives of many residents. The withdrawn NPPS’s focus on VfM without sufficient emphasis on safety is concerning. We argue that the new NPPS must explicitly prioritise public safety, particularly in housing, and remind authorities that certain corners should never be cut. The NPPS can add significant value by highlighting that concerns over cost must not eclipse safety considerations.
Whole-Life Costing: Achieving effective VfM means evaluating costs over an entire life cycle, not just upfront. Maintenance, operation, and disposal costs must all be considered. We recommend the NPPS signposts authorities guidance and tools, similar to tools made available by the EU Commission, in order to help authorities implement whole-life costing effectively. We acknowledge the effort that would be required to develop these tools. However, the benefits would make it worthwhile. Material recycling and the circular economy (discussed in the next section) may also play a role in lowering whole life cost.
2. Delivering social value: How can we use public procurement to achieve greater social value to support delivery of the missions?
Procurement has the power to reduce inequality, support local economies, and improve well-being. The NPPS should provide clear, actionable direction for achieving these outcomes.
Accessible and Inclusive Design: The withdrawn NPPS’s language about not “gold-plating” the Equality Act 2010 could dissuade authorities from prioritising inclusivity. We regarded this wording as unclear, unhelpful and even dangerous given its potential to induce contracting authorities to breach their duties by failing to consider the needs of end-users with a protected characteristic. For example, where commissioning services from healthcare providers authorities may need to consider whether the providers’ premises will be suitable for disabled patients (see for example Braceurself Ltd v NHS Property Services Ltd [2024][1]). We argue that the NPPS must encourage authorities to integrate accessibility into projects, not dismiss it as a burdensome requirement. Ensuring equal access is not an extra but a necessity for a fairer and more inclusive society.
Integrating Circular Economy Principles: Emphasising sustainability isn’t just about protecting the environment or fighting climate change; it also requires consideration of circular economy practices, like minimising waste and maximising resource efficiency. This can lead to lower disposal costs and reduced environmental impact. We believe the NPPS should highlight the long-term savings and environmental benefits of circular solutions. Within resources provided by the EU Commission is the case study of the Irish Prison Service’s mattress recycling initiative. The IPS made substantial cost savings as the cost of removal and recycling of prison mattresses were far less than the previous disposal arrangements with a commercial operator (Adopting circular economy principles: Setting reclamation targets in a redevelopment tender – European Commission).
Guidance and Training: The NPPS should support comprehensive training for procurement officials on social value, whole-life costing, and sustainable practices. Drawing inspiration from the approach of the Environment Protection Agency in Ireland which has issued sector specific guidance on procurement, we suggest that the NPPS signpost practical resources and examples.
3. Enabling collaboration: How can we accelerate collaboration in public procurement (between central and local government, between local anchor partners (e.g. in health and education) and in partnership with suppliers), to support delivery of the missions?
Being a law firm rather than a public body, this was a tougher one for us to answer. However, we believe that public bodies have much to learn from each other’s procurement journeys. Collaboration is critical for achieving complex procurement missions, but it requires the right frameworks and investment.
Cross-Sector Task Forces: We propose creating task forces that include representatives from central and local governments, health services, education, and suppliers to align strategies and share knowledge. Collaborative workshops could help address common challenges.
Standardised Frameworks and Knowledge Sharing: Consistency is key. The NPPS should promote and encourage the collection and sharing of authorities’ approaches to simplify joint efforts and establish a repository of case studies and best practices. Authorities should be encouraged to contribute their learnings, creating a culture of shared progress. We are conscious that the PA 23 will require publication of procurement documentation. Whilst this brings transparency, it will not by itself capture the wisdom and insight of procurement experience.
Investing in Professional Development: Procurement professionals need more than encouragement—they need resources. Continuous Professional Development (CPD) programs can upskill teams and foster a stronger, more unified profession. Forums for sharing success stories and lessons learned can drive meaningful collaboration.
4. Fostering innovation: How can we help policy-makers/commissioners identify challenges that can be put to the market to support mission outcomes through innovation, and improve commercial capability to deliver mission-driven procurement?
In our view, innovation should be central to public procurement, but it requires bold action and accessible resources.
Create an Accessible Innovation Hub: The Government should support the creation of a central repository for innovative procurement practices, showcasing global examples from KEINO in Finland to CivTech in Scotland. The hub, which could be referenced in the NPPS, should also feature guidance on emerging technologies like AI and robotics, ensuring authorities are equipped to make forward-thinking decisions. We would signpost the excellent work done by Professor Alfred Graells-Sanchez of Bristol University Law School in this regard (see for example: Public Procurement of Artificial Intelligence: Recent Developments and Remaining Challenges in EU Law by Albert Sanchez-Graells :: SSRN).
Outcome-Based Specifications: Inspired by practices from the US, the NPPS should encourage authorities to specify desired outcomes rather than prescriptive methods. This allows suppliers the freedom to innovate and develop efficient, impactful solutions.
Support for SMEs: SMEs (and startups) are often at the forefront of innovation, yet they face barriers in public procurement. This is particularly but not exclusively the case in relation to technology. The NPPS should highlight how compliance with S 12(4) of the Act can be achieved by reducing administrative burdens and occasionally through mentorship and co-funding opportunities. We feel there is a synergy between finding ways for SMEs to become more involved in public contracting and harnessing more innovative solutions.
Realistic IP clauses On an anonymised basis, we shared an experience where one of our clients (coincidentally, a SME) had a groundbreaking technology with the potential to revolutionise and deliver massive cost savings in one area of sectoral procurement. Having shared the concept, the authority decided it could only be procured on a competitive basis under the Public Contracts Regulations 2015. Unfortunately, the draft contract included within the tender pack contained a number of restrictive clauses, including an intellectual property clause that would have effectively transferred ownership of software source code to the public body. This being unacceptable and non-negotiable, our client was forced to withdraw. In our client’s view, the ultimate solution that was purchased by the public body did not deliver the same innovative potential that it could have offered, meaning that onerous contractual clauses had led to procurement failure.
Conclusion:
Much is often made of the financial aspects of public procurement. Procurement accounts for around an astonishing 15% of GDP. On construction projects alone, the public sector spent a record £29 billion on construction in the 12 months to September 2021. It is therefore only right that one of the questions in the consultation focuses on VfM and potential cost savings.
However, finances and cost are not the full picture. Our recommendations are rooted in the belief that public procurement can save lives, promote equity, and drive sustainable innovation. The lessons of Grenfell remind us that unrestrained cost-cutting can have dire consequences, particularly for construction but also for other mission-critical services such as defence, nuclear decommissioning and frontline healthcare.
End-user considerations are also important. Cases like Braceurself have touched upon the importance of ensuring accessibility and making sure that designs are inclusive for all end-users. By embedding safety, social value, collaboration, and innovation into the NPPS, we can transform public spending into a force that truly benefits society.
We are also keen for the NPPS to add practical value. It can do this by signposting users to helpful resources such as case-studies, guidance and life-cycle costing tools. The content of these resources should be compiled from the bottom-up as well as top-down, which is to say that authorities must be encouraged to share candidly the lessons of their own experiences.
Public procurement isn’t just a bureaucratic exercise; it shapes our communities and our future. Procurers, suppliers, end-users and legal advisers: we have a shared duty to get it right
