Contract Management under the Act

In this webinar, Jenny Beresford-Jones, Claire Crawford and Adam Hulme looked at Contract Management under the Procurement Act 2023.

Key questions and answers

Please note that although the information in our our 5 in 25 webinars and FAQs was correct at the date of recording, this is an area of law subject to development and change.

Do check if in doubt as to the latest position - you can email [email protected].

Please note that the responses provided represent the general views of the public procurement team at Mills & Reeve, however they should not be relied on or treated as a substitute for specific advice relevant to a particular scenario/matter. If you require specific legal advice, our procurement team would be happy to discuss this further.

FAQs

In relation to the requirement to set KPIs where the contract value is greater than £5m, is this based on total indicative lifetime value of the contract, or the annual contract value?

The requirement applies where the estimated value of the public contract across its whole term (including any options/extensions) exceeds £5 million.

When publishing a contract, if one of the schedules is the tender submission, can a bidder designate as confidential their method statements etc. on the basis that this might give competitors an advantage in future procurements?

The guidance on Contract Details Notices (together with which contracts valued at over £5m must be published) states that the contract may be redacted in accordance with the exemptions set out in section 94 (General exemptions from duties to publish or disclose information). The guidance on the central digital platform will provide further information when it is published.

Will contracting authorities be able to use information relating to supplier performance, published via Contract Performance notices, in their decision-making during tendering processes?

In principle, this would presumably be possible, although the approach would need to be transparently disclosed in the Tender Notice and the procurement documents, and fall within the rules around setting and disclosing conditions of participation at section 22 (in particular the requirement that these are a proportionate means of assessing whether the supplier has the capacity to perform the contract, taking into account its nature, cost and complexity. It will be interesting to see if the guidance on the Central Digital Platform provides more guidance here.

Do these contract management obligations apply to contracts procured under the Public Contracts Regulations 2015 or only to those under the new Act? Also, do they apply to services within "light touch" unless expressly excluded?

We have assumed the question refers to the obligations around setting and report on KPIs for contracts valued at over £5m and reporting poor supplier performance under section 71(5).

These obligations apply only to contracts regulated by the Act – that is, to contracts whose procurement was commenced on or after 24 February 2025. They do not apply to light touch regime services.

In relation to the publication of a Termination Notice within 30 days of the date of termination; does this mean that termination does not take effect until damages have been awarded and paid?

No, the Termination Notice under the Act is always published after termination has taken effect.

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