Overview
The Procurement Act 2023 (Commencement No. 3 and Transitional Savings Provisions) Regulations 2024 (the Commencement Regulations) set the date for the new public procurement regime to take effect from 28 October 2024.
The PA 2023 received Royal Assent on 26 October 2023 and some of the provisions (primarily defence-related and enabling provisions) came into force on 19 January 2024. For further background and information on the key principles behind the Act, please see our previous article here.
The Government Commercial Function subsequently announced that the "go-live" date for the PA 2023 was expected to be 28 October 2023. This has now been formalised via the Commencement Regulations. This gives contracting authorities just under five months to put in place the changes needed to their systems, processes and governance documents and ensure that staff have a good understanding of the differences under the existing regime. DWF is delivering a series of webinars to assist contracting authorities in this respect which can be accessed here. For an overview of the regime and information on key training and resources that are available for contracting authorities, please see our previous article here. Commencement The Commencement Regulations were made on 22 May 2024 and bring into effect Subsections (2), (3), and (4) of section 115 of the PA 2023 from 23 May 2024. These provisions allow Scottish Ministers to apply or disapply devolved Scottish procurement legislation to contracting authorities regulated by the Act in certain circumstances. Otherwise, the Commencement Regulations will bring nearly all of the remaining provisions of the Act into force from 28 October 2024, except for the following transparency-related obligations:· provisions relating to the publication of payments compliance notices, information about significant payments and information about contract performance (including against KPIs); and· the requirement to publish pipeline notices. It is not yet clear, when these obligations are expected to come into force. Transitional Arrangements The Commencement Regulations also cover transitional arrangements for procurements or contracts that start or are awarded before 28 October 2024. Existing legislation (i.e. the regime primarily based upon the Public Contracts Regulation 2015 (PCR 2015)) will apply until the new regime goes live, and will also continue to apply to procurements started under the old rules. This means that procurements started before 28 October 2024 (including resulting contracts and modifications to those contracts) will continue to be regulated by the existing procurement regime.
Therefore, the PA 2023 will not apply to:
- competitive procurements – where a contract notice, concession notice, voluntary transparency notice, below-threshold advertisement or utilities notice for a qualification system that acts as a call for competition is published before 28 October 2024;
- direct awards – where a contracting authority contacted the supplier before 28 October 2024 with the intention of entering into a contract using the negotiated procedure without prior publication or call for competition under the PCR 2015 or the Utilities Contracts Regulations 2016; and
- Concluded contracts – where contracts, frameworks or dynamic purchasing systems are concluded before 28 October 2024.
Comment
The PA 2023 will fundamentally change the existing procurement regime in the UK. Contracting authorities will now need to undertake (or accelerate) a substantial programme of work to get ready for the new regime coming into force in October later this year.
As mentioned above, the PA 2023 will come into full force and effect in just under five months. This is not a long time given the extent of the changes and will undoubtedly have significant resourcing implications that many contracting authorities will need to work through. To add to which is a general concern of ensuring compliance with the new rules and safeguarding against challenges once the PA 2023 is in full force and effect. In a recent DWF webinar attended by over 200 delegates, over 63% of respondents to a survey question thought the implementation of the PA 2023 would increase the likelihood of a procurement challenge. In the early days following implementation, we would certainly agree that this is a genuine possibility.
What is clear is that the work to update contracting authorities’ processes, procedures and training will need to begin in earnest for procurements that commence after 28 October 2024.
DWF Law LLP is one of the leading advisers on public procurement issues. We act for a wide range of clients, including many contracting authorities and key suppliers to the public sector. We have the experience to understand how to apply the detailed technical rules in practice. We help public sector clients to design effective and compliant tender procedures.
Please free to get in touch with our procurement lawyers if it would be useful to discuss any of the issues raised in this article, or other matters related to public procurement.
With assistance from Emily Crees, who is a trainee in our Commercial Team.
