Single Source Contract (Amendment) Regulations 2024
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The Earl of Minto
That the Grand Committee do consider the Single Source Contract (Amendment) Regulations 2024.
The Minister of State, Ministry of Defence (The Earl of Minto) (Con)
My Lords, since their introduction through the Defence Reform Act 2014, the Single Source Contract Regulations have generally worked well and helped ensure that the prices paid for single source contracts both are reasonable and reflect good value for taxpayers’ money.
There are now some 575 contracts under the regime, with a total value of more than £90 billion. However, any set of regulations needs to adapt as the environment changes. In this case, we have found that the rules continue to work well for traditional defence procurement —for ships, submarines, aircraft and so on—but less well for sectors such as software. Moreover, the imperative to procure things more quickly means that we sometimes need to buy “off the shelf” items without running a competition, either because we need compatibility with existing systems or because we simply do not have any time.
To address this, we completed a detailed statutory review of the regime in 2022. It proposed a series of reforms in a Command Paper, Defence and Security Industrial Strategy: Reforms to the Single Source Contract Regulations, which was published for consultation in April 2022. The changes made by these amendment regulations are the next stage of implementing those reforms. They will deliver improvements to the regime in three key ways.
First, they will increase flexibility around where the regime can be used to ensure that more defence contracts can be single sourced without compromising assurance on value for money and fair prices. The amendment regulations introduce a number of alternative ways of pricing a single source defence contract, most significantly by allowing prices to be set with reference to market rates rather than always having to use the bottom-up default pricing formula. Another example is where existing UK or overseas laws constrain the way prices are set in a way that is inconsistent with the single source regime. In such circumstance, the amendments will allow the disapplication of the pricing formula to the minimum extent necessary to comply with the other law.
There are also cases where it would be useful to disapply the pricing formula to part of a contract, particularly where a contract comes under the regulations significantly after it was signed. This will avoid the need to re-open the pricing of work that may have been completed and paid for years in the past, and will increase suppliers’ willingness to bring long-running contracts under the regime. The amendments will allow the pricing formula to be applied only to new elements of the contract.
Secondly, the reforms will speed up and simplify the way the regulations work in practice. The legislation currently states that, for contracts that fall under the regulations, a single profit rate needs to be applied to the entirety of the contract when it is signed. For some larger single source contracts, it makes commercial sense to use different pricing types for different elements of the contract, meaning that a single profit rate might be too high or too low for some elements.
These amendment regulations will explicitly allow contracts to be split into different components where it makes sense to do so. They will also simplify the determination of an appropriate profit rate for a contract by reducing the number of steps in the profit rate calculation from six to four. The Single Source Regulations Office funding adjustment will be abolished, and the adjustment made to ensure that profit is earned on a contract only once will be moved from a profit calculation and be considered as part of the assessment of allowable costs for contracts.
The Earl of Minto (Con)
My Lords, I thank noble Lords for their contributions to this debate and say to the noble Lord, Lord Tunnicliffe, in particular that this is a very complicated set of contracts and it took me some time and quite a bit of reading to understand them. But I do understand them and, with great respect, they are very effective indeed.
I think it is worth reiterating that the MoD’s preferred approach to procurement remains through open competition in the domestic and global market. But we are often limited to a single supplier to provide the capability that our Armed Forces need, particularly when we have to produce equipment quickly, as I said earlier, in the face of rapidly evolving threats.
The single source contract regulations are a fundamental part of defence procurement and are key to ensuring value for money. The statutory framework, which has been running for eight years now, sets out clear rules on pricing single source defence contracts that place the onus on suppliers to demonstrate that their costs are appropriate, attributable and reasonable, and defines the level of profit that can be applied. It is only right that we ensure that this framework continues to function effectively for all parties and adapts to changes in what we buy and how we buy it.
As mentioned at the opening of this debate, and by other noble Lords, these reforms are necessary. Adjustments to pricing methods, simplification of processes, correcting profit calculations and ensuring competitiveness with taxpayers’ money are all good reasons why we are here today.
We also need to preserve key industrial and technological capabilities within the UK for strategic reasons. The combination of these factors means that single source procurement amounts to around 50% of defence procurement spent on equipment and services—or some £13 billion per annum. Where there is a lack of competitive pressure, the MoD needs alternative ways of assuring value for money for the taxpayer, while ensuring that our suppliers are paid the fair returns required to preserve their long-term viability.
These amendment regulations, as the noble Baroness pointed out, which are primarily about pricing, will clearly require changes to reporting requirements. Those changes are in this statutory instrument. They should not be conflated with the broader changes to reporting requirements that will be made in the second set of amendment regulations in the autumn. Where it is not appropriate to set out the requirements in legislation, the SSRO is providing two sets of guidance. The first, which covers how suppliers in the MoD should meet the new pricing requirements, was made available to industry on 12 February—pretty recently. The second covers the changes to reporting contained in the statutory instrument, which includes detailed provisions on how contracts that use the new flexibilities must be reported on—including to Parliament.
I reassure noble Lords that we have consulted extensively with our suppliers on the policy underpinning these amendments—a point raised by the noble Lord, Lord Tunnicliffe. I thank them for their contributions, which have led to some useful improvements. Overall, the amendments are designed to make the regulations easier and quicker to apply in practice—which must be the right thing to do.
To ease the initial implementation of the amendments, we will be flexible in the way we apply the reforms, particularly for the first contracts that will use them. For example, we are waiving many of the reporting requirements on componentised contracts—contracts that are cut up into different pieces—before the beginning of 2025. We will continue to work with those in industry to address their specific concerns.
The regulations currently apply only to single source defence contracts over £5 million, so their impact on SMEs is already limited. The Government are very keen not to impose unnecessary burdens on SMEs and, to this end, committed to reviewing that threshold in our response to the consultation on these amendment regulations, with a particular view to the impact on SMEs. We expect to put further regulations before Parliament in the next year.
On the question of pricing disputes, where there is a dispute about the price, either party can make a referral on the matter to the impartial Single Source Regulations Office for a legally binding decision.
On the question of whether we are trading value for money for pace, I reassure noble Lords that this is absolutely not the case. One of the key intents of these reforms is to provide the full weight of the regulatory protections under all circumstances. For example, allowing use of alternative pricing methods, such as commercial pricing, will support rapid procurement and provide protection on value for money.
If I have not answered any questions, I will write following this Committee. I thank noble Lords for their interest in the matter and I hope that the Committee will welcome these important and necessary amendment regulations. I beg to move.