The Government Commercial Function has announced that they "are working towards a ‘go-live’ date for the new regime of 28 October 2024". Whilst this will need to be formalised in future commencement regulations, this is the date when the remaining parts of the Procurement Act 2023 (the "Act") are expected to come into full force and effect.
The Act aims to "create simpler, more flexible and effective procurement" which delivers better value for money for contracting authorities. The Government Commercial Function expects some of the benefits of the new Act to include:
- "creating a simpler and more flexible commercial system that better meets [the…] country’s needs while remaining compliant with [it's…] international obligations";
- "opening up public procurement to new entrants such as small businesses and social enterprises so that they can compete for and win more public contracts";
- "taking tougher action on underperforming suppliers and excluding suppliers who pose unacceptable risks"; and
- "embedding transparency throughout the commercial lifecycle so that the spending of taxpayers’ money can be properly scrutinised".
Where can I get training on the requirements of the Public Procurement Act 2023?
DWF's Procurement Centre of Excellence is hosting a series of online webinars on key aspects of the new regime with practical advice on the impact of the changes for both contracting authorities and suppliers. This includes webinars covering the following topics:
- Public Procurement: Direct Awards (register here);
- The Procurement Act 2023 – procurement documents (register here);
- The Procurement Act 2023 – Framework Agreements and Dynamic Purchasing Systems (register here);
- The Procurement Act 2023 – Conducting a lawful evaluation (register here);
- The Procurement Act 2023 – Land deal v public works (register here); and
- Public Procurement: Conflicts of interest (register here).
Further details of our upcoming webinars can be found here.
In addition, the Cabinet Office has published a series of "knowledge drops" on the new Act which are "designed to provide a high level overview of the changes to the procurement regulations and aimed at those who have regular interactions with procurement" as well as a number of guidance documents which are intended to "help with interpretation and understanding" of the new rules. Further details on the guidance documents can be found here.
The Government Commercial Function has also launched e-learning modules on the Act "to support practitioners in implementing the new regime". The e-learning is "aimed at all operational procurement staff – […including] staff whose main role is to run tenders or let contracts, or procurement / commercial professionals whose main role is to manage suppliers or contracts."
What are the key changes contracting authorities should expect from 28 October 2024?
The Act will consolidate the four sets of procurement regulations under the current regime into one Act. Whilst there will only be the one Act, it will be accompanied by a series of secondary legislation and a suite of guidance documents. Although not yet in force, this includes the Procurement (Transparency) Regulations, the Procurement Act 2023 (Miscellaneous Provisions) Regulations 2024.
The main changes that contracting authorities and suppliers will see with effect from 28 October 2024 are:
- new objectives: the new Act will replace the procurement 'principles' that we have under the current regime with new 'objectives'. Section 12 of the Act sets out four specific objectives which contracting authorities must have regard to when conducting a procurement. These are:
- delivering value for money;
- maximising public benefit;
- sharing information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions; and
- acting, and being seen to act, with integrity;
- competitive flexible procedure: a driving force of the Act is to promote greater flexibility, moving away from the current prescriptive procurement procedures. Under the Act, contracting authorities will be able to use an open procedure or a competitive flexible procedure. The new Act removes the prescriptive requirements of the current procedures and allows contracting authorities to design their own competitive flexible procedure based on what they think is suitable for the relevant contract;
- new notice requirements: there will be a number of new notices that contracting authorities will be required to publish under the Act. Some are similar to the notice requirement under the current regime, whilst others are entirely new. Notices will be required at all stages of the procurement life cycle. Examples of the new notice requirements include:
- Pipeline Notices;
- Contract Award Notices;
- Contract Details Notices;
- Transparency Notices; and
- Procurement Termination Notices;
- requirement to publish Key Performance Indicators ("KPIs"): the Act is set to change the scope of contract management and how it should be undertaken. Section 52 of the Act states that where a public contract has an estimated value of more than £5 million, before entering into that contract a contracting authority must publish at least three KPIs in relation to that agreement. There are exclusions to this rule and KPIs will not be required in the following public contracts:
- frameworks;
- utilities contracts (where they are awarded by private utilities);
- light touch contracts; and
- concession contracts.
Transition arrangements
In terms of the transition arrangements, "procurements that commence after the entry into force of the Act must be conducted by reference to the Act only, whilst those that were commenced under the previous legislation [(i.e. the Public Contracts Regulations 2015 etc.)] must continue to be procured and managed under that legislation". It is worth noting that "any contracts awarded under the previous legislation will continue to be managed under that legislation until such a time as the contract, or commercial tool… ceases to exist". Further guidance on the transition arrangements is available here.
Comments
The new Act will come into full force and effect on Monday 28 October 2024 and will mark a significant departure from the current EU derived procurement rules. Contracting authorities should now look to accelerate the development of their processes and training to help prepare for the new rules, as well updating any standing orders or other internal governance requirements.
