Transparency requirements in the Procurement Act 2023

The Procurement Act 2023 brings significant reforms to transparency in public procurement. This blog explores the new approach to transparency notices that will take effect once the Procurement Act comes into force on 24 February 2025, and follows on from our previous deep dive into the proposals within the Procurement Bill.

The Procurement Act reinforces the Government’s commitment to increasing transparency by requiring the publication of transparency notices at all stages of the contract lifecycle. This new approach is designed to ensure openness at each stage, allowing the public and suppliers to understand contracting authorities’ decision making, with full visibility of decisions made at each stage of the process. To supplement the provisions within the Procurement Act, the Procurement Regulations 2024 set out more granular detail on the information to be included within each notice.

The diagram set out below summarises the multiple (and on-going) requirements to publish transparency notices at each stage of the contracting process.

Alongside a number of notices that will be more familiar to contracting authorities and suppliers from the existing regime, the Procurement Act introduces a number of new notices, including:

 

Procurement Termination Notice

If a contracting authority decides not to award a contract after publishing a tender or transparency notice, it must publish a procurement termination notice. This will give suppliers and the public greater visibility of when a contract authority decides to stop a procurement before contract award.

 

Contract Award Notice/Transparency Notice

Before entering into a public contract, a contracting authority must publish a contract award notice when a competitive process has been followed, or a transparency notice where the contract authority intends to make a direct award. These two notices will give suppliers and the wider public advance notice that a contracting authority is intending to award a contract, providing them with the opportunity to scrutinise contract awards before the contract itself is entered into. However, the effect of these notices remains to be seen as the Procurement Regulations 2024 do not specify a minimum time period between publishing a transparency notice and entering into a contract following a direct award. Therefore, arguably a contracting authority could publish the transparency notice and enter into a direct award very soon thereafter, thus reducing the practical benefit of requiring the transparency notice.

 

Contract Details Notice

A contracting authority must publish a notice that it has entered into a contract, within 30 days (or 120 for light touch contracts). For contracts with an estimated value of ≥GBP5 million, contracting authorities must also publish a copy of the contract (subject to exemptions from publication as set out section 94 of the Procurement Act) within 90 days (or 180 for light touch contracts). This now places a statutory obligation on contracting authorities to publish a copy of the contract, whereas this obligation was previously covered by guidance and policy.

 

Contract Termination Notice

A contracting authority must publish a contract termination notice within 30 days of the end of a public contract, for any reason. This will provide suppliers and the public with a greater understanding of when contracts come to an end, addressing the current lack of clarity in the existing regime where it is not aways clear if a contract has expired or been extended.

 

This commitment to transparency is, however, notably no longer included as a principle of public procurement. Whilst the PCR included an express principle requiring contracting authorities to act in a transparent manner, the Green Paper proposal for transparency to be included as a mandatory principle does not feature in the Procurement Act. Instead, Section 12(1)(c) of the Procurement Act requires contracting authorities to “have regard to the importance of…sharing information” which now represents the once proposed transparency principle. Government Commercial Function guidance clarifies that the requirement to have regard means that contracting authorities must, throughout the procurement, give genuine attention and thought to the objective, considering its relevance and importance, if any, to the procurement. This approach reflects the move to specific hard coded obligations of transparency at each stage of the procurement process, ensuring it is clear to all what the expectations are at each stage.

It is clear that one of the key focuses and objectives of the Procurement Act is to promote (and embed) transparency within the full lifecycle of contracts. However, the sheer number of notices and circumstances triggering the obligation to publish a notice will result in a significant increase in the administration required to manage contracts within already stretched commercial teams. The central digital platform has been established by the Cabinet Office for each of these notices to be published to, which will enhance the existing Find a Tender service. The intention is for this platform to be fully integrated so that noticing, sign-in and registration and supplier information all work together. Existing e-tendering portals may, in time, be able to assist in mitigating against the administrative burden associated with the notice requirements, by automating notices and notifying contracting authorities at each stage when the obligation to publish a notice arises. However, as the central digital platform has only recently been developed, and is not available for suppliers to register on until 24 February, it is unlikely that these e-tendering portals will have completed their re-configuration and be well understood from the onset of the obligations under the Procurement Act.

The impact of these transparency reforms remains to be seen as much will depend on how far contracting authorities comply with the requirements to publish each of these notices, as well as the quality of information included. Time will also tell how the courts will treat the failure to publish comprehensive notices, some of which might be perceived as more critical than others. Conceivably the courts may see non or limited publication as a more technical breach initially, but over time a failure to adhere may become a more substantive matter. However, as highlighted in Cabinet Office guidance, contracting authorities are responsible for publishing notices on time, providing all required information and any associated documents, and failure to publish a notice when it is required, or publishing incorrect or incomplete information, could result in non-compliance with the Procurement Act and place contracting authorities at risk of a legal challenge – nobody can say they have not been warned.

For more information on the transparency requirements under the Procurement Act, please get in touch.