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Procurement and transparency

Melanie Pears and Tim Care analyse the new obligations on contracting authorities in relation to 'Transparency', drawing attention to any key changes from previous procurement legislation which contracting authorities ought to be aware of.

On 26 October 2023 the Procurement Bill received Royal Assent and is now expected to come into force in October 2024.

The Procurement Act 2023 establishes a new public procurement regime following Brexit, and aims to deliver the Government’s promise to grow the economy by creating a simpler and more transparent system.

This new system hopes to ensure better value for money and reduce costs for businesses and the public sector. The Act also seeks to streamline the procurement process, and afford contracting authorities more flexibility to negotiate prices and create innovative solutions with bidders.

The Act will, in particular, revoke the following:

  • Public Contracts Regulations 2015 (PCR)
  • Concession Contracts Regulations 2016
  • Utilities Contracts Regulations 2016

What’s new?

As explored in a previous article of ours, the objectives listed in section 12 of the Procurement Act do not include reference to transparency like Regulation 18 of the PCR. However, a contracting authority’s obligation to be transparent is embedded throughout the Act.

The Act introduces new notices and publication requirements throughout the procurement process. The requirements expected of contracting authorities prior to, and during a procurement, are explored below.

  • Planned Procurement Notice(s.15(2)) –The new Planned Procurement Notice (PPN) is akin to the Prior Information Notice (PIN) under Regulation 48 of the PCR, and may be published before a Tender Notice. A PPN should set out that the contracting authority intends to publish a Tender Notice, and must be published at least 40 days but not more than 12 months before the day on which the Tender Notice is issued.
  • Preliminary Market Engagement Notice (s.17(2))– A Preliminary Market Engagement Notice may be published in circumstances where a contracting authority wishes to engage with suppliers in advance of a procurement. Contracting authorities should note that if they are to participate in preliminary market engagement, but do not publish a Preliminary Market Engagement Notice, they must provide reasons for not doing so in their Tender Notice.
  • Tender Notice (s.21(2))– This resembles the Contract Notice under Regulation 49 of the PCR.
  • Dynamic Market Notices (s.39)– There are four notices in relation to Dynamic Markets (DM):
    • (1) to be published before establishing the DM, setting out that the contracting authority intends to establish a DM.
    • (2) to be published as soon as reasonably practicable after establishing a DM, to confirm that the DM has been created.
    • (3) as soon as reasonably practicable after modifying a DM, to identify what modifications have been made.
    • (4) as soon as reasonably practicable after a DM ceases to operate, to confirm the termination of the DM.
  • Transparency Notice (s.44(2))– This has to be published before awarding a contract via direct award and must explain that the contracting authority intends to award a contract directly.
  • Contract Award Notice (s.50(2))– This must be published before entering into a contract as it affirms that the contracting authority intends to enter into a contract. This triggers the mandatory 8 working day standstill period.
  • Assessment Summary (s.50(3))– This is effectively the replacement of the current Regulation 86 Feedback Letter under the PCR. It must be sent to each supplier who submitted an “assessed tender” before the contract award notice is published.
  • Contract Details Notice (s.53(2))– This must be published within 30 days of the day the contract is entered into (or 120 days in the case of a light touch contract) and sets out that the contracting authority has entered into a contract. This is akin to the Contract Award Notice under Regulation 50 of the PCR, but more information will be required.

The Government has also published ‘The Procurement (Transparency) Regulations’ in draft which outline what each of these notices should contain. It is hoped that once the template notices become available online, some of the bureaucracy will be reduced.

What’s changed?

There are several new notices that authorities will have to be mindful of, but contracting authorities should not be alarmed by the transparency requirements introduced by the Procurement Act, as many reflect what is currently within the PCR. For instance, the PIN has been replaced with the PPN, and the Contract Notice is now the Tender Notice. A Contract Award Notice is now the Contract Details Notice, and the Feedback Letter has been replaced with the Assessment Summary.

Where new notice requirements are being introduced, it is hoped that online templates will assist the transition from the PCR to the Procurement Act.

What does this mean?

Contracting authorities should now start to review their internal policies and procedures to ensure that these notices are built into their procurement process. As we continue to roll out our Nutshells in this series, you will see that while many of these transparency requirements appear to impose an additional but broadly simple administrative burden on authorities, some of the requirements will require more thought and planning.

Melanie Pears and Tim Care are Partners in the Public Sector Team at Ward Hadaway.