Procurement Act 2023: What does the delay mean for you?

On 12 September, the Government confirmed the rumours and the highly anticipated Procurement Act 2023 (the “Act”), due to come in to force on 28 October 2024, will now be delayed until 24 February 2025 [1]. Whilst this may result in a sigh of relief for many, write Sophie Mcfie-Hyland and Lorrraine Spurling, for others it will trigger a huge chorus of “so where does this leave my planned procurement?”

Why the delay?

The reason given for the delay is to allow time for a new National Procurement Policy Statement (“NPPS”) to be produced. The Minister’s statement sets out that the current NPPS “does not meet the challenge of applying the full potential of public procurement to deliver value for money, economic growth, and social value”.

Will this impact on the materials released?

Luckily this does not have any impact on the learning and development materials already issued by government, and the roll out of the guidance documents is expected to continue.

So should we procure anything before 24 February 2025?

The answer to this is it depends!

On the one hand, if the contracting authority had not actively elected to procure under the new Act but were forced by circumstances to do so, e.g. documents were not going to be ready by 28th October or internal approvals could only occur after that date, then this delay may provide some useful time to commence the procurement under familiar provisions and existing precedents, without needing to get to grips with new requirements such as the numerous notices.

In contrast, if the authority were hoping to utilise some of the new elements of the Act, for example using the competitive flexible procedure, then consideration should be given to delaying the procurement until after the Act is implemented.

Any decision to delay must be taken in the context of its consequential impact – i.e. when does the current contract end? Can any existing contract legitimately be extended under existing legislation?

Is the delay good news?

The delay will come as good news to those contracting authorities who want to procure before the Act and now have more time to do so.

It will also assist those contracting authorities whose preparations for implementation, such as updating contract standing orders and procurement documents, were not as advanced as may have been hoped at this stage, since there is now an additional 4 months to push ahead with this critical work.

What should we do now?

Contracting authorities should urgently look at their procurement pipeline and critically assess the most suitable time to commence their procurement. Those wishing to extend current contracts may need to take legal advice on their ability to do so under current legislation.

Most importantly, they should not take their foot off the pedal in respect of their preparations for the Act and instead use this windfall time to make sure that they are ready for the new era.

Contracting authorities should also sign up to the Cabinet Office’s Transforming Public Procurement – GOV.UK (www.gov.uk) updates to ensure that they receive the latest news and are notified when new guidance is issued.

Sophie Mcfie-Hyland is a Senior Associate and Lorraine Spurling is a Managing Associate at Sharpe Pritchard LLP.

Sharpe Pritchard advise contracting authorities and utilities on all manner of public procurement matters. Our experts are on hand to guide you through the intricacies of the existing and new procurement regimes. Please contact us for further information or look out for further training, publications and blogs from our Procurement specialists.

[1] Written statements – Written questions, answers and statements – UK Parliament

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