On 5 July 2024 the UK had a change in Government, and we are now in the third month of the UK’s new Labour Government. With any change of Government, there is generally a drive “to get things done” and to be able to point to tangible actions within the first 100 days in power. This may be even more the case given the current Labour Government’s intention for a “mission-driven government”. The Labour Government’s five missions to “rebuild Britain” are:
“1) Kickstart economic growth
2) Make Britain a clean energy superpower
3) Take back our streets
4) Break down barriers to opportunity
5) Build an NHS fit for the future”
In many cases, procurement is where policy meets reality, and this will be no different for the Labour Government. For the Labour Government to achieve its five missions it will require a significant amount of procurement and support from the private sector. This article discusses some of the main points organisations should consider when engaging with the public sector, including:
The UK Government (and other public bodies) must, in most cases, procure in accordance with the ‘Principles of Procurement’ (regulation 18 of the Public Contracts Regulations 2015 (“PCR”)). These principles oblige public bodies to treat suppliers equally, without discrimination, and to act in a transparent and proportionate manner.
Whilst we have focussed on the current procurement regime for this article, it should be noted that the UK’s new procurement regime goes live on 28 October 2024. Section 16 (Preliminary market engagement) of the Procurement Act 2023 appears to be very similar to the current position under the PCR, with a few specific exceptions. For example, the obligation to publish a preliminary market engagement notice or explain, in the tender notice, why it did not publish such a notice (see Section 17 of the Procurement Act 2023). For a high-level summary of the key changes to the UK’s procurement regime, please see our previous article, The Procurement Act 2023: Key changes to be aware of.
The ability to undertake pre-market engagement is expressly stated in regulation 40 of the PCR, and pre-market engagement appears to be encouraged, as evidenced in the Sourcing Playbook. The Principles of Procurement do not prohibit public bodies from undertaking preliminary market consultations and then using any advice or feedback it receives in planning and conducting a procurement (including understanding the barriers to suppliers submitting a bid), provided it does not distort competition nor breach the Principles of Procurement.
When we advise public bodies, we strongly advocate for a comprehensive and meaningful engagement as effective market engagement can, amongst other things:
When on supply-side and when engaged sufficiently early to provide bid support, we generally advise engaging with public bodies and their market engagement exercises as much as possible, including asking strategic clarifications. This is because it provides an opportunity to:
However, for many reasons organisations should still approach engaging with public bodies with caution, including:
In the UK, “lobbying” is when individuals, groups or organisations seek to influence Government policy or decision-making. The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (“Lobbying Act”) regulates ‘consultant lobbying’. A person is carrying out ‘consultant lobbying’ if:
Communications are:
Where lobbying does not fall within the definition of ‘consultant lobbying’, it is not regulated by the Lobbying Act.
Any consultant lobbying activity that takes place without the necessary registration is an offence, even if committed unintentionally. Under the Lobbying Act, consultant lobbyists must disclose clients’ names irrespective of expectations of client confidentiality. Consultant lobbyists must update their disclosure every quarter.
Although an offence may be caused by a consultant lobbyist, there could be significant reputational harm to an organisation if it is associated with that consultant lobbyist. Accordingly, organisations should ensure that they act with caution when engaging third parties to conduct communications on their behalf to ensure they do not fall foul of the Lobbying Act.
Given the likely change in government personnel following the change in Government, it may be the case that public sector employees are looking to move into private sector roles. Organisations should be aware that conditions may apply to former public sector employees when leaving their posts, including wider “lobbying” restrictions. These conditions may be imposed by the individual’s former employer or The Advisory Committee on Business Appointments (ACOBA) and could be made publicly available. Therefore, organisations should take care when such conditions apply to an employee as a public breach of those conditions could result in negative publicity for the organisation.
We have been increasingly advising on the topics discussed in this article, as is expected due to the change in Government. If you have any queries or concerns about engaging with public bodies (including lobbying and recruitment considerations) please contact us.