“I’ve started, so I’ll finish” – transitional implementation of the Procurement Act 2023

If public procurement is your special subject, you might have noticed that there are no less than 36 points within the Procurement Bill where “the Secretary of State may, by regulations”, do something.

This permits the government to make further, secondary, legislation to deal with all the details that are too complex and unwieldy to be included in the Act itself.  The government is now consulting on that secondary legislation in two parts.

Part 1 of the consultation covers a range of topics, including the scope of the Light Touch Regime for social and health services, the definition of a “central government authority”, and the disapplication of the new Act to clinical health services (which will instead fall under the new Provider Selection Regime).

Part 2 of the consultation has a focus on transparency provisions and notices. The content detail of each of the (many!) new notices is set out in the draft Procurement (Transparency) Regulations 2023. Consultees are asked to comment on the extent to which the content of each of the notices reflects the policy intent set out in the Bill.

The Part 2 consultation also gives a first glimpse of the potential approach to the transitional application of the new Act. Similar to as happened with the introduction of the 2015 Regulations, the consultation suggests that an “I’ve started, so I’ll finish” approach will be adopted for procurements already “commenced” when the Act comes into force, as well as for lawfully-established frameworks and DPS already in operation at the go live date.

As under the 2015 Regulations, “commenced” is likely to mean “advertised”. Learning lessons from the transition to the 2015 Regulations, the new Act will make transitional application for procurements which are “non-competitive” – for example those that are exempt because they are “in-house” contracts or “joint collaborations”. Any non-competitive procurement entered into later than 3 months after implementation date will be subject to the rules of the new regime, unless a Voluntary Ex-Ante Transparency Notice (VEAT) has already been published for the procurement.

The government is working to a go live date of October 2024 at the moment. If you would like to respond to the consultations the window is open until 28 July for Part 1, and 25 August for Part 2.

Keep an eye on our Reform page for all the latest on the Procurement Act 2023. And do sign up to our 5 in 25 webinar series for the year 2023/2024 - when we will be focussing on the new regime in detail. 

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