The Procurement Act 2023 receives Royal Assent – so what now?

Summary

Following 18 months of Parliamentary scrutiny, the Procurement Bill received Royal Assent on 26 October 2023. This marks a key milestone in the implementation of what the UK Government have hailed as “one of the largest shake ups to procurement rules in this country’s history”.

The Cabinet Office has confirmed that the Procurement Act 2023 (“the Act”) is expected to “go-live” from October 2024. The text of the Act can be found here, with explanatory notes here. However, there is still some way to go before the new regime comes fully into force. 

Consultation and Secondary Legislation

The Act will be supplemented by various pieces of secondary legislation. The Cabinet Office has previously consulted on this legislation: Part 1 and Part 2 – we await publication of its response.

The Cabinet Office has confirmed that it anticipates that the secondary legislation will be laid into Parliament in early 2024, allowing for a six-month preparation period before the new regime comes into effect in October 2024.

Guidance

The Cabinet Office has committed to providing comprehensive guidance and support prior to commencement of the new regime. Documents produced so far can be found on its Transforming Public Procurement (“TPP”) webpage. Part of TPP, the Cabinet Office’s “knowledge-drop” was published on 5 December 2023, containing separate guidance for contracting authorities, suppliers, SMEs and VCSEs.

There will also be a centrally-funded learning and development programme for contracting authorities to support those in October, details of which can be found here.

How can Burges Salmon help?

Our leading procurement experts, ranked in Band 1 for Public Procurement by Chambers for over 15 years, will keep you updated on the transition to the new regime. Our Procurement Act Training & Help (P.A.T.H.) webpage provides access to online resources and will be updated over the coming months to include detailed briefings on the changes you can expect at all stages of the procurement lifecycle, specifically:

• Pre-procurement considerations: What bodies/procurements will be covered by the new regime? What principles and objectives will govern the design and implementation of regulated procurements? How can contracting authorities effectively engage with the market? What procurement routes and procedures will now be available? When can contracts be directly awarded?
• Selection: What conditions of participation can be used? When can suppliers be excluded from taking part in regulated procurements? What is the impact of debarment and how can debarment decisions be challenged?
• Award: What’s the difference between MEAT and MAT? What award criteria can be used? Can the procurement process/documents be changed? What information is required in an assessment summary? What records must be kept of procurement processes and decisions?
• Contract management: How does the Procurement Act impact contracts once they have been awarded? What information must be disclosed on KPIs? Can regulated contracts be modified? What are the rules on termination?
• Challenges: How (and when) can procurements be challenged? What remedies are available if a challenge is successful?
• Sector-specific guidance: How do the rules differ for utilities contracts, defence and security contracts, concession contracts, light touch contracts, and below threshold contracts?

Whether you are a contracting authority or utility responsible for ensuring a robust and compliant procurement process, or a bidder regularly tendering for regulated contracts, our team of procurement specialists are here to help guide you through the transition.

If you have any queries about the Act or how we can help you with implementation, please do not hesitate to contact partner John Houlden or Laura Wisdom.