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The Act represents the biggest shake-up of our procurement laws for over thirty years. Until now, the existing procurement regime in the UK has been derived from EU rules on public procurement, dating from 2014; before that we also had a procurement rulebook derived from the previous EU law. The Act will consolidate various existing public procurement rules into one regime based on national priorities and certain objectives seen as key by the Government – for example, overcoming the barriers faced by smaller businesses to taking part in public procurement.
Some of the changes are significant, will open up new opportunities for greater competition, and provide scope for a much more flexible procurement process and approach to contract management. And with certain sector-specific provisions made and exclusions applied, it will be important for organisations to determine how the Act will apply to them and ensure they are well prepared.
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On 24 February 2025, a new public procurement regime will be brought into effect by the Procurement Act 2023. Originally planned to commence on 28 October 2024, this short delay in the Act's introduction is to allow time for the National Procurement Policy Statement to be adapted in line with the new government's priorities.
While the extended time will mean anyone operating in or with the public sector has more time to prepare, further regulations have now been made to implement the revised date for the Act coming into effect. Once in place, the Act will mark a radical change in procurement regulations for England, Wales and Northern Ireland – introducing a completely new set of rules for both public bodies and private companies supplying into the public sector.
How will the new regime differ from the old? What are the key changes and points for organisations to consider? And how can procurers and suppliers best navigate the new regime? To answer these questions our procurement and sector experts have compiled a summary of the key points to note about the new Act, including:
Be sure to bookmark this page as we will continue to provide updates with our latest insights and resources when new developments occur so that you are fully equipped to respond.
In our changing landscape article series, our team explore the key features of the Act, and what public bodies and suppliers can do to prepare themselves for a seamless transition to life under the new regime.
Explore our article series
The four existing pieces of legislation – comprising the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Defence and Security Public Contracts Regulations 2011 and Concession Contracts Regulations 2016 – will be revoked and these separate regimes brought together into one new Act.
The Act introduces a radical overhaul of the law governing public procurement in England, Wales and Northern Ireland, with a host of new rules, procedures and processes. Building on the key principles and objectives discussed in the first article in our 'changing landscape' series on the Act, it will answer to a range of aims around equality, value for money, public benefit and transparency. The aim here is to make it easier for procurers and suppliers to determine what parts of the legislation apply to them, in their situation and sector. Notably, some areas will also now fall outside of the Act i.e. delivery of healthcare services is now covered by separate legislation.
Chris Brennan discusses the draft Procurement Regulations 2024, explaining how the Regulations will work alongside the Procurement Act 2023, what their role will be, and how they will be key in laying out practical aspects of the new law.
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Suppliers will start to see significant changes in the look and feel of public procurement once the new Act is in force. For a start, SME suppliers may notice that they have more possibilities of winning contracts, thanks to the duty the Act will place on authorities to consider how they can reduce barriers to participation for smaller suppliers – notably by considering whether a larger contract requirement can be divided into small "lots".
With its measures aimed at opening up procurement markets to smaller suppliers, the Act should help break down barriers to entry into those markets for many suppliers. The new objectives enshrined in the Act – and notably the duty to have regard to the fact that SMEs may face particular barriers to participation, and to consider whether such barriers can be removed or reduced – place this on a statutory footing, and suppliers should be free to ask questions of authorities if contract award notices reveal a preponderance of awards to large enterprises.
Procurement pipelines should also become much easier for suppliers to navigate. Without good advance publicity from authorities about procurements that are planned, it can be very difficult for many suppliers (large or small) to mobilise properly in good time to be able to place their best foot forward and bid for an opportunity they are interested in. With the Act's introduction of pipeline notices, this should no longer be an issue.
And the shift in emphasis from "the most economically advantageous tender" to just "the most advantageous tender" should help shine the spotlight on factors authorities should be considering and which go beyond merely price. Prominent among these non-economic factors (and especially right now) are the social and environmental benefits many suppliers can offer in real and imaginative ways, above the financial. Yes, a proposition might not be the cheapest, but the environmental, social and governance (ESG) and non-price benefits offered might be enormous.
From a sector perspective, there are a number of areas where there are important changes for suppliers to consider. We've identified a few key sectors below where there are notable points to highlight:
The Act sets out a number of exemptions and exclusions from its coverage. Here's a summary of some of the exemptions from the main requirements of the Act for defence and security contracts – which we cover in more detail in issue four of our 'changing landscape' article series.
Procurement by the security service organisations will be specifically exempt from the Act. A number of contract types are also exempt. Specifically, these include defence and security contracts where:
Also exempt are contracts that the contracting authority determines should be excluded in the interests of national security, and contracts for intelligence activities. "National security" is not defined by the Act: this is intentional, so that the concept of national security (and the ability to have recourse to the Act's provisions which deal with it) is kept flexible and adaptable.
A number of pieces of secondary legislation (Regulations) are now in place to deal with particular aspects of the Act and its implementation.
These principally concern commencement and transition, and also deal extensively with the "machinery" around the Act – providing the detail on matters such as the precise contents of the numerous transparency notices that authorities must publish in connection with procurements and procured contracts.
Other aspects covered by the secondary legislation include: the governance of the new Central Digital Platform (including what happens if a supplier can't register details because the platform is not working); the sharing of core supplier information through the Central Digital Platform; the contents of assessment summaries; the list of light-touch and reservable light-touch service types; the list of central government contracting authorities; and the disapplication of the Act in relation to regulated health procurement in England (which, since 1 January 2024, has been covered by the NHS Provider Selection regime – a separate code of rules tailored specifically for NHS purchasing).
The Act brings with it a significant number of new rules, some of which apply even before a procurement gets underway, and others during the lifecycle of a procured public contract. As such, the Act's reach extends well beyond that of the existing procurement regime in a number of ways.
Authorities will need to be fully geared up for the Act to bite, beginning at the very earliest stages of their pre-procurement planning. The enhanced transparency requirements, fulfilled through the publication of the numerous new types of notice, will represent a new normal. However, the quid pro quo is the significantly greater flexibility that the Act will afford them in terms of how procurements can be conducted – notably, through the introduction of the new competitive flexible procedure. That will allow authorities to build into their procurement features such as benchmarking and competitive R&D, and to test and evaluate innovation.
The best approach for authorities, therefore, is to embrace the Act, and not be intimidated by it – instead, to take advantage of the flexibility and to accept that with it comes the need for accountability, good decision-making, and proper record-keeping.
The new Central Digital Platform will give suppliers, other stakeholders and, indeed, the public much more data on: how public money is spent; what it is being spent on; who is spending it; how much contracts are costing; how they are being performed and whether there are quality issues; whether contracts are undergoing mid-life changes and, if so, how; what contracts are being directly awarded without competition; whether suppliers are being paid promptly; whether procurements are being terminated without any contract awarded and, if so, why; and more. Authorities will be able to observe voluntary standstill periods in some situations (as well as having to observe mandatory standstills in others) to manage and mitigate any risk of challenge.
It is worth reminding ourselves that the Act's transparency requirements will, over time, start to reap rewards for authorities too. Yes, the machinery of the Act will surely underline accountability by forcing authorities to be transparent about what they are doing. Equally, the Central Digital Platform should ultimately play host to a significant body of data about current and past procurements, allowing authorities to see what other authorities are doing. If a particular authority wants to procure something which is perhaps a little niche, it could find that another authority is procuring something similar elsewhere – and thereby share ideas and learnings. Potentially, this could save them much time, resource and cost. These incoming changes are set to have a significant impact on the procurement regime.
We'll be monitoring developments closely and updating this summary as new details emerge.
Our Public Procurement team is at the forefront of these developments and can guide suppliers through the procurement process.
Contact a member of our Procurement team for more guidance.
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