Yes, my Lords, I believe I did say that. In parliamentary terms, I am reiterating what I said. SMEs cover, for the purpose of this, voluntary organisations, social enterprises and charities. I think I have made clear my profound personal belief that these are part of the vital warp and woof of our society.
Amendment 121, proposed by noble Lord, Lord Wallace of Saltaire, aims to ensure contracting authorities take reasonable steps to verify that the supplier and any subcontractors are able to deliver the contract. Although we absolutely agree that contracting authorities need to do this in practice, we do not think it is necessary to add this provision into legislation, as the very operation of procurement is geared to this—the setting of conditions of participation, award criteria and evaluation processes, to name a few. While, as part of the Bill, we are improving supply chain visibility, we do not want to overengineer—noble Lords must have heard me say this too many times—legislative requirements for contracting authorities to investigate these matters in every procurement process as a box-ticking exercise.
Amendment 122A, which was proposed by the noble Baronesses, Lady Thornton and Lady Bennett of Manor Castle, and supported by others, would give the Minister the ability to exempt contracting authorities from the tests that must be satisfied when setting award criteria in order to allow policy priorities to take precedence to create additional public value. The Delegated Powers and Regulatory Reform Committee might have something to say about such an amendment if it were put forward by a Minister. It sounds very much as if certain rules need not apply in this particular place or contract. It certainly has a whiff of the dispensing power that the Glorious Revolution was designed to do away with, although I know noble Lords will say there is too much Henry VIII in too much legislation. So, in a technical sense it would be a difficult thing to do, but we think it would be undesirable.
We want all award criteria to be clear, measurable, relevant, non-discriminatory and proportionate to avoid unnecessary burdens on suppliers. We believe that this, together with our plans to publish a national procurement policy statement, which we debated earlier, and the requirement for authorities to maximise public benefit, will be sufficient. I have heard scepticism, but we believe that is the case.
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Amendment 123 from my noble friend Lord Lansley would require that when contracting authorities are setting award criteria for the purposes of awarding a
public contract, they always ensure that those criteria allow for innovative solutions. Amen to that; we want innovation. That is another thing that we have been asking for on all sides of your Lordships’ Committee. In the Bill we want to give contracting authorities the maximum flexibility to select the most appropriate award criteria needed given the nature of the procurement, as long, as I have just explained, as they meet the requirements of Clause 22—for example, they are relevant to the subject of the contract, non-discriminatory and proportionate. The Bill already allows award criteria to be selected in respect of innovative solutions where they meet these tests, and we are already taking a number of major steps to drive innovation in the Bill. For example, the new competitive flexible procedure, which we will debate in another group, gives contracting authorities the ability to design and run a procedure that suits the market in which they are operating.
On Amendments 124, 127 and 124A from the noble Baroness, Lady Worthington, and my noble friend Lady McIntosh of Pickering, Amendments 124 and 124A would make it mandatory that award criteria always align with a very specific list of matters relating to environmental and climate change objectives. Amendment 127 would ensure that the social and environmental impact of a contract can always be considered to be relevant to its subject matter. Amendment 125 from the noble Baroness, Lady Hayman, is similar and would require all award criteria to have regard to social value.
The noble Baroness, Lady Worthington, was kind—or cynical—enough to recognise that we had debated this and imagined what my answer might be. We are resistant to adding further conditions. We believe that delivering value for taxpayers should be a key driver behind any decision to award contracts, and as I have said in previous debates, we do not think it is appropriate to include wider policy objectives, such as those suggested, in primary legislation. Policy priorities should be included in award criteria only where they are demonstrably relevant to the subject matter of the contract. It is essential for value for money reasons that that is done. It avoids procurements becoming unduly complex through the inclusion of extraneous and unnecessary requirements. Perhaps we have a disagreement on that, but that is the Government’s position. We do not want to increase costs and make it harder for small businesses to bid for public contracts.
I cannot specifically answer the question from the Law Society of Scotland—I had divined that it might be the originator of the questions that were asked. As the noble Lord knows, the Scottish Government have chosen not to participate in this procurement process, and in those circumstances I am disinclined to have them say what should go in legislation for England, Wales and Northern Ireland, which are co-operating together so well. However, I will look at the specific point raised by the amendment.
Amendment 129, proposed by the noble Lord, Lord Wallace, would include a list of very specific factors to be considered in determining value for money. It is an important question. However, this amendment would place limits on what can be taken into account when assessing the subject matter of the contract, rather than allowing authorities to consider “all the circumstances”,
as currently provided in the Bill—perhaps by, as the noble Lord suggested, a sleepy draftsman or draftswoman. We believe that if we made it too precise, we would force contracting authorities to design their procurements around, in some cases, irrelevant factors and potentially not allow them to consider other, relevant factors, all of which could increase cost. I will take advice on “all the circumstances”, given the challenge that the noble Lord put to your Lordships’ Committee.