Guidance on Transitional and Saving Arrangements Published

Ahead of the changeover to the Procurement Act 2023, on 22 April the Government Commercial Function published guidance on transitional and saving arrangements.  Shyann Sheehy and Sally Stock look at the key points for contracting authorities.

On the 22^nd of April the Government Commercial Function published the ‘Guidance: Transitional and Saving Arrangements’ which provides guidance on the arrangements which determine how contracting authorities (‘CAs’) are effected and should manage the changeover from previous legislation to the Procurement Act 2023 (‘PA 2023’).

It has been confirmed that it is the Government’s intention for ‘Go Live’ (i.e. the date in which the PA 2023 will come into force) to be October 28^th 2024. The aim of this guidance is to aid a smooth transition and cause as little disruption as possible for procurements which are already underway, or which have already been awarded when Go Live occurs.

Summary of arrangements for procurement processes

• Competitive procurements are those which fall under previous legislation if
  • a Prior Information Notice was issued before the 26^th of May 2023,
  • a contract notice was submitted under the Public Contracts Regulations 2015 (‘PCR 2015’),
  • a voluntary transparency notice was published,
  • a below-threshold contract opportunity was announced under the PCR 2015,
  • a utilities notice regarding a qualification system was published under the Utilities Contracts Regulations 2016, or
  • a sub-contract notice was submitted under the Defence and Security Public Contracts Regulations 2011.
• Negotiated procedures without prior publication, will continue under previous legislation if CAs initiated them under such legislation, allowing CAs who intended to enter into contracts with suppliers without prior publication of contract notices to proceed under the previous legislation. Note it would be wise to have a clearly documented audit trail and to have progressed with discussions prior to the 28^th of October 2024.
• The arrangements allow for the direct award of additional works and services related to contracts awarded under previous legislation as long as this intention was stated in the tender notice/documentation of the original contract.

Other key points for contracting authorities to note

1. Dynamic Purchasing Systems – If awarded under previous legislation will continue to be managed under that legislation until such a time as they cease to exist or by the 27 October 2028 (whichever is earlier).
2. Frameworks – Call-off contracts awarded through frameworks under previous legislation will continue to be managed under that legislation until the call off contract expires or is terminated.
3. Modifying Contracts – CAs wishing to modify contracts which have been awarded under previous legislation should continue to use regulation 72 of the PCR 2015, the PA 2023 will not apply.
4. Qualification Systems – Organisations are encouraged to terminate (by no later than 27 October 2028) qualification systems (a) where it is used for procurements of a specific programme/project which has come to a natural end; or (b) for general utilities, after a fair and reasonable period.
5. Key Performance Indicators (‘KPIs’) – Obligations under the PA 2023 will only apply to those awarded under the PA 2023, CAs are not required to set or publish KPIs for contracts awarded under previous legislation.
6. Awards under the PA 2023 – CAs intending to carry out a procurement soon after the PA 2023 comes into force will need to consider provisions in the PA 2023 when planning the procurement, even though it may not be in force throughout the procurement process.

Shyann Sheehy is a Paralegal and Sally Stock is a Partner at Sharpe Pritchard LLP.

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