The new Procurement Act 2023: An unwanted Christmas gift, or a New Year’s resolution?

The Key Changes

The Public Contracts Regulations 2015, Concessions Contracts Regulations 2016, Utilities Contracts Regulations 2016 and Defence and Security Public Contracts Regulations 2011 will be repealed and replaced by the Act.

By consolidating the current (somewhat complicated and burdensome) regulations, the Government hopes to a ‘create simpler, more flexible and effective procurement’ regime which delivers value for money and maximises public benefit.

Consequently, the procurement procedures enshrined in the current regulations will also be replaced.  Going forward, there will now be just two:

• a ‘single stage open procedure’ – similar to the current open procedure, and
• a ‘competitive flexible procedure’ – whereby contracting authorities can devise their own procedure(s) to suit (provided it stays within the rules of the game).

But, if contracting authorities will be afforded more flexibility to shape their procurement procedure(s), this will come at the administrative expense of having to navigate and manage no less than 14 types of notice requirements. These include:

• Planned Procurement Notice (non-mandatory) – Section 15
• Preliminary Market Engagement Notice – Section 17
• Tender Notice – Section 21
• Dynamic Market Notice – Section 39
• Transparency Notice – Section 44
• Contract Award Notice – Section 50
• Contract Details Notice – Section 53
• Procurement Termination Notice – Section 55
• Payments Compliance Notice – Section 69
• Contract Performance Notice – Section 71
• Contract Change Notice – Section 75
• Contract Termination Notice – Section 80
• Below-Threshold Tender Notice – Section 87
• Pipeline Notice – Section 93

Contracting authorities will need to adequately consider, set and publicly report on key performance indicators in relation to large contracts (£5m+). Suppliers may also be disbarred if mandatory or discretionary exclusion criteria are triggered. This is not just in relation with the supplier’s own performance but also in relation to the status of their associated suppliers and subcontractors too.

The standstill period will also change. Under the current regime the standstill period is set at ten calendar days, ending on a working day. The Act now mandates a standstill period of 8 working days beginning with the day on which the contract award notice is published. Where light touch contracts and framework call-offs are used, no standstill period will be required.

For Suppliers who are SMEs, they will be glad to hear that the Act imposes specific obligations on the contracting authority to not only consider the “lotting” structure, but also look at reducing barriers to entry for SMEs participating in a procurement. This will include, amongst other things, removing the requirement to provide accounts and insurances during the bidding process. This might help SMEs save time, effort and most importantly money, from not having to carry specific insurance requirements throughout the entire bidding process.

Contracting authorities will also be afforded the opportunity to directly negotiate prices with SMEs via smaller, tailored contract lots. Suppliers (particularly SMEs) will also benefit from a centralised digital platform which will store their details and track opportunities all under one roof. The overall effect of course is to streamline the tender process and make it easier for SMEs to bid for the public purse.

Oh and let’s not forget…there will be lots of new references and terminology to get used to. For example, ‘Most Economically Advantageous Tender’ (MEAT) will now be ‘Most Advantageous Tender’ (MAT) and ‘Selection Criteria’ will be ‘Conditions of Participation’.