What does this mean for procurement practitioners and suppliers?
- The Procurement Act 2023 received Royal Assent on 26 October 2023 but is not yet “in force”
- “Working towards” a “go-live” of 28 October 2024 (this will be formalised in Commencement Regulations - which we understand will be passed in May)
- Secondary legislation containing extensive detail about transparency (the Central Digital Platform and the content of notices) has already been laid before Parliament and are expected any day now (to be the Procurement Regulations 2024)
- Technical Guidance being published from March through to June
- Government delivering training - Transforming Public Procurement.
What about procurements which have already started before the “go-live” date?
Cabinet Office guidance on the transitional provisions [1] explains that any procurement process which is “commenced” after Go Live will be governed by the Procurement Act 2023. Any procurement process which has been “commenced” before Go Live will continue to be governed under previous legislation [2].
What does “commenced” mean?
The guidance explains that a procurement is “commenced” when:
- before 26th May 2023 a PIN was used as a call for competition by a sub-central
contracting authority, or - a contract notice has been submitted to be published under the previous
legislation, or - a voluntary transparency notice is published under the PCR or the DSPCR, or
- a below-threshold contract opportunity is published under the PC, or
- a utilities notice on the existence of a qualification system that acts as a call for competition is published under the UCR, or
- a sub-contract notice has been submitted to be published under the DSPCR.
Which regime will apply to Frameworks and Dynamic Purchasing Systems?
Where a framework agreement or Dynamic Purchasing Systems has been set up before Go Live, any awards under that framework will be managed and governed by the previous legislation until the end (for whatever reason) of the last contract awarded under the framework agreement during the term of the framework agreement.
The transitional regulations are expected to set out that any Dynamic Purchasing System must come to an end by 27 October 2028 (four years after the new regime comes into effect) or as set out when the DPS was first established, whichever is earlier.
What about management of contracts which were awarded under the old regime?
- Contracts awarded under the old regime will be managed by the old regime
- This means that notices under the old regime will need to be published
- Modification of contracts awarded under the old regime will be governed by the old regime (i.e. Regulation 72 for contracts awarded under the PCR 2015)
- The obligations in the Act relating to KPIs only apply to contracts awarded under the Act. Contracting authorities are not required by the Act to set or publish KPIs for contracts that were awarded under old regime.
Planning for change
One of the biggest tasks facing suppliers and contracting authorities will be registration on the new Central Digital Platform. This is where all notices will be published, including whether any exclusion grounds apply.
Each supplier will have to do this for themselves, and also any connected persons, as defined in the Procurement Act 2023.
If a procurement is going to be commenced after Go Live, there will still be planning to do to ensure that the post-Go Live procurement complies with the Procurement Act 2023. For example, the authority will need to ensure that the forthcoming procurement complies with obligations to have regard to the NPPS, the procurement objectives set out in the Procurement Act 2023, setting of KPIs and record keeping.
Further reading and guidance
The government is delivering training and guidance documents.
Emily Heard is a partner at Bevan Brittan.
Bevan Brittan LLP can also deliver bespoke training for your organisation along with reference materials. For further details please contact Emily or find out more in the firm's Talking Heads series.
[1] The Procurement Act (Commencement No. 3 and Transitional and Saving) Regulations 2024.
[2] The Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concession Regulations 2016 and the Defence and Security Public Contracts Regulations 2011.