The United Kingdom’s new Procurement Act 2023
On 26 October 2023, the United Kingdom’s new procurement regime received Royal Assent.
This is due to come into effect in October 2024.
Understanding of the Act will be imperative to all organisations who fall within the scope of and are reliant on the new legislative provisions during procurement processes as procurement rules establish a legal framework which govern the procedures and principle for the award of public contracts.
The Procurement Act 2023 (“the Act”) has been introduced by the UK government post-Brexit, with the aim of substantially overhauling and reforming the UK’s public procurement rules. It has been described as a “once in a generation change”.
The Act aims to make procurement quicker, simpler and more transparent whilst remaining compliant with international obligations.
Key changes
The Act aims to provide a single piece of legislation under which public procurement will be legislated. At present, public procurement is currently legislated by the four following pieces of legislation:
- The Public Contracts Regulations 2015
- The Utilities Contracts Regulations 2016
- Concession Contracts Regulations 2016
- Defence and Security Public Contracts Regulations 2011
The introduction of a new “Competitive Flexible Procedure” will give contracting authorities the discretion to consider their own requirements to shape and design a procurement process.
Greater recognition of small and medium enterprises (“SMEs”).
Increased transparency through the introduction of notices which will be published throughout the entire procurement cycle.
A new digital platform which will enable:
- notices to be easily accessible
- free of charge
- through a single point of access
On this new platform, Suppliers will input their data once and have a unique identifier to be able to retrieve information easily for all upcoming procurements.
New requirements placed on contracting authorities when publishing Key Performance Indicators. For example, a contracting authority must now publish 3 KPI’s when the estimated value of the public contract is more than £5 million.
Departure from the previous Most Economically Advantageous Tender (“MEAT”) evaluation criteria, introducing instead the Most Advantageous Tender (“MAT”). This is reflective of the shift towards considering other issues on the Government’s Agenda, such as sustainability and broader environmental considerations.
In addition to those previously provided for under the existing regulations, further grounds for mandatory exclusion of suppliers have been introduced. A new central debarment list has also been introduced and being placed on this will prevent a supplier from being awarded any public contracts until they are removed from the list.
Standstill periods have been reduced. Under the 2023 Act, standstill periods will now be eight working days beginning with the day on which a contract award notice is published in respect if the contract. It is also now mandatory to have a standstill period where contracts are signed under a direct award.
Furthermore, automatic suspension will only be triggered where proceedings commence before the end of the standstill period, not any time up until the award of the contract - this will mean it will no longer be possible for challengers to agree a standstill extension with the contracting authority to give them time to decide whether to start proceedings.
Secondary legislation
Secondary legislation will be required to address ambiguities in the 2023 Act.
The UK Government has already undertaken technical consultations on the introduction of secondary legislation; any required law should be introduced prior to the implementation of the Act in October 2024.
Guidance for contracting authorities
The new regime is expected to go live in October 2024, with at least 6 months’ advance notice.
The six-month lead in period, beginning April 2024, will include government training programmes and guidance, available on the Government Website, to include YouTube videos and even TikToks.
“Knowledge Drops” from the Government Website are due to begin in December 2023.
A&L Goodbody are providing advice and training to individual businesses, utilities and contracting authortities in relation to the new Procurement Act 2023.
Moving forward
The new Act provides for greater transparency requirements that Contracting Authorities must adhere to and certain flexibilities that Contracting Authorities can benefit from.
With extensive knowledge of procurement law within the UK, A&L Goodbody’s Public and Regulatory team in Belfast can assist both economic operators and contracting authorities in understanding their new obligations.
Should you require any further guidance with respect to the upcoming changes to procurement, contact our Public and Regulatory team for further guidance.
Date published: 13 December 2023