Procurement Act 2023
Yesterday was a significant day for all of us working in public procurement - the Procurement Act 2023 received Royal Assent and is now on the statute books.This means that the Act, which we expect will soon be available on the www.legislation.gov.uk site, is now in final form.
We're pleased to share with you a range of materials in relation to this as follows:
Commencement
The Act has not yet come into force; section 126 gives the government the power to set the date when the Act will go live (and indeed to bring different parts of the Act into force at different times). The latest statement from the government suggests an initial go live date in October 2024.
Transition
The approach to transition is not yet fully settled as we await the results of a consultation on this area. However, it seems likely that the approach will mirror that taken when the Public Contracts Regulations 2015 (PCRs) came into force; that is, that any procurement “commenced” prior to the relevant go live date will continue to be governed by the PCRs. Procurements that are commenced on or after the go live date, will be regulated by the Procurement Act 2023.
Secondary legislation
The Procurement Act 2023 contains powers in numerous parts for the government to make further secondary legislation (ie “regulations”) to cover the detail of how the provisions of the Act are to work in practice.
For example, the detail of the required content of all the new notices required under the Act is set out in the draft Procurement (Transparency) Regulations 202X which are currently being consulted on. We expect further draft regulations to be issued in due course. This means that the Procurement Act 2023 does not stand alone as a definite statement of the new law – we will also need to consult the various new sets of regulations once these are settled.
Road to implementation
There is a long road from here to commencement of the new regime (currently expected to be in October 2024). Secondary legislation needs to be drafted and finalised, and the government is intending to run a series of training events and publish guidance and resources through Autumn 2023 into Spring 2024. It has also committed to a six month notice period once all the legislation is finalised, to allow authorities and suppliers to prepare.
How can you prepare?
Authorities and suppliers are advised to begin to familiarise themselves with the new regime and to consider the new internal processes that may need to be established in order to comply. The most significant areas of change are likely to be:
- Transparency: a real expansion in the number of notices that an authority will need to publish about the procurement
- Procurement processes: new flexibilities, subject to limits, to design bespoke procurement processes
- Contract performance: a new requirement for all authorities to set and publicly report on KPIs for larger contracts valued at over £5 million
- Supplier debarment list: the possibility of supplier debarment where mandatory or discretionary exclusion criteria are triggered
- New language: the Act uses new language to describe familiar concepts (for example, “selection criteria” will be known as “conditions of participation” under the Act)
Authorities should ensure they take advantage of the training and education opportunities offered by the government and that they are signed up to the relevant email alerts etc. This page allows you to sign up.