Alison Richards
Partner
Article
This article, the latest in our changing landscape series on the Procurement Act 2023, looks at how the law will govern transition to the new procurement regime, and which contracts will be regulated by the current regime and the Procurement Act respectively.
The Procurement Act 2023 (Commencement No 3 and Transitional and Saving Provisions) Regulations 2024 (the Commencement No 3 Regulations), made on 22 May 2024, set out the mechanics of transition from the current public procurement regime to the new regime introduced by the Procurement Act 2023.
The Commencement No 3 Regulations are an important item of legislation on the pathway to the era of the new Procurement Act. This is because they introduce the key legal machinery which determines which procurements, frameworks, direct awards, and contracts (including modifications to contracts) are governed by the existing public procurement regime, and which will be governed by the new Act.
Specifically, the Commencement No 3 Regulations:
In essence, the effect of the Commencement No 3 Regulations is that procurements which were commenced, and contracts which were awarded (either directly or through competition), before 24 February 2025 continue to be governed by whichever part of the current procurement regime (PCR, UCR, CCR or DSPCR) applies to the award of the contract in question. This means that the existing regime will continue to regulate the following situations:
However, where a non-mandatory PIN – that is, one which was used merely to signal a contracting authority's future procurement pipeline or to begin an early market engagement exercise – was published before 24 February 2025, then the PIN will not operate to keep within the existing regime any procurement exercise which might start on or after 24 February 2025, or any direct award made on or after that date. Instead, the Act will cover such situations.
In addition, Regulation 113(7) of the PCR, which requires contracting authorities to publish annual statistical information showing the extent to which they have complied with the requirement to pay suppliers within 30 days of an undisputed invoice, has been changed to align with the Act. As a result, the requirement will become six-monthly from 24 February 2025.
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If you have any questions or need support with navigating these latest developments, get in touch with Christopher Brennan, Alison Richards, or Alexi Markham.
Footnotes:
[1] These dates have been changed by the Procurement Act 2023 (Commencement No. 3 and Transitional and Saving Provisions) (Amendment) Regulations 2024, which came into force on 17 September 2024 following the Government's decision to delay the Act's entry into force for four months until 24 February 2025.
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