On 30 November 2021, the Cabinet Office published PPN 09/21 and its associated guidance "Guidance on the Transparency Requirements for Publishing on Contracts Finder" (the Guidance) reminding "In-scope Organisations" of the requirements to publish procurement information on Contracts Finder. PPN 09/21 and its associated guidance apply with immediate effect.
PPN 09/21 replaces PPN 07/21 and its associated guidance which were published on 24 June 2021 and which summarised:
- the requirements for contracting authorities to make public sector opportunities available on Contracts Finder;
- the key obligations in respect of advertising opportunities and publishing award information; and
- the additional policies that central government authorities should apply to their procurements which exceed £10,000 net of VAT.
Our previous insight sets out the requirements of PPN 07/21 and its associated guidance in detail.
PPN 09/21 – scope and application
PPN 09/21 makes various amendments to PPN 07/21 to clarify the transparency and publication requirements for NHS Foundation Trusts. The requirements for central government authorities, sub-central contracting authorities and NHS Trusts remain unchanged (although PPN 09/21 makes a few minor tweaks to the wider language used in PPN 07/21).
As with its predecessor, the Guidance to PPN 09/21 is divided into two parts:
Part 1 of the Guidance applies to all contracting authorities across the public sector other than:
- contracting authorities whose functions are wholly or mainly devolved functions within the meaning of regulation 1(8) of the Public Contracts Regulations 2015 (the PCR 2015);
- maintained schools, academies and sixth form colleges; and
- the procurement of health care services for the purpose of the NHS within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013).
Part 2 of the Guidance applies to all central government authorities other than:
- contracting authorities whose functions are wholly or mainly devolved functions within the meaning of regulation 1(8) of the PCR 2015;
- maintained schools, academies and sixth form colleges;
- the procurement of health care services for the purpose of the NHS within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013); and
- NHS Trusts and NHS Foundation Trusts
NHS Trusts and NHS Foundation Trusts
Whilst NHS Foundation Trusts have always been considered central government contracting authorities, following post-Brexit updates to Schedule 1 of the PCR 2015(by the Public Procurement (Agreement on Government Procurement) (Amendment) (No.2) Regulations 2021) they have been included in Schedule 1 in their own right/as a category distinct from other NHS Trusts for clarity.
Whilst both NHS Trusts and NHS Foundation Trusts are now recognised explicitly as central government contracting authorities in Schedule 1, there remains a disparity in the publication requirements set out in the below threshold rules set out in regulation 109 of the PCR 2015.
Regulation 109(2)(c)(i) of the PCR 2015 provides that sub-central contracting authorities and NHS Trusts are subject to a higher threshold amount of £25,000 (net of VAT) than central government authorities for the purposes of publishing notices to Contracts Finder. However, the regulation is silent in respect of NHS Foundation Trusts.
Given their absence from regulation 109(2)(c)(i), the Guidance is clear that the impact for NHS Foundation Trusts is that they are required to follow the lower central government threshold of £10,000 (net of VAT) for the purposes of publishing notices to Contracts Finder.
NHS Foundation Trust publication and transparency requirements
The FAQs set out in the Guidance explain that, to reduce the burden on NHS Foundation Trusts which comes with the lower publication threshold, the UK Government has disapplied the central government requirements to publish the contract documents which would have applied to NHS Foundation Trusts, and to align the obligations on NHS Foundation Trusts with those of other NHS Trusts.
In light of the above, PPN 09/21 confirms that, in respect of below-threshold procurements, NHS Foundation Trusts should follow the same publication value thresholds as central government authorities (i.e., £10,000 and above net of VAT) under Part 1 of the Guidance. However, notwithstanding the fact that NHS Foundation Trusts are considered central government contracting authorities (and are listed as Schedule 1 bodies in the PCR), PPN 09/21 confirms that they are only subject to the minimum publication requirements as set out in Part 1 of the Guidance, and they are not required to comply with the more detailed provisions set out in Part 2.
That is to say that NHS Foundation Trusts are not required to apply the additional policies that other central government authorities must apply to their procurements which exceed £10,000 (net of VAT). Unlike sub-central contracting authorities, central government authorities must also publish the awarded contract documents alongside the award notice following the award of a contract, as set out in Part 2 of the Guidance (and summarised here in respect of PPN 07/21 – this part of the Guidance remains unchanged). PPN 09/21 clarifies that NHS Foundation Trusts do not need to publish these additional awarded contract documents.
Additionally, PPN 09/21 clarifies what is considered a "reasonable time" for the purposes of publishing information about contracts awarded:
1. For central government contracting authorities, the Guidance sets out that a reasonable time to publish information about contracts awarded to Contracts Finder is within thirty (30) calendar days after the contract award date.
2. PPN 09/21 and the Guidance make clear that NHS Trusts and NHS Foundation Trusts are not required to publish within this shorter timescale and, instead, should follow the guidance for sub-central authorities on what is considered a reasonable time for publication (i.e. within ninety (90) calendar days after the contract award date).
PPN 09/21 and the Guidance recognise that treating NHS Trusts and NHS Foundation Trusts differently may cause some confusion and confirms that the UK Government is looking into further options to address this disparity in requirements. In the meantime, the Guidance highlights that all NHS Trusts are encouraged to adopt the publication of tender and contract documents on a voluntary basis in any event.
