The Procurement Act 2023 starts on 28 October 2024

The new public procurement regime created by the Procurement Act 2023 (the Act) will start on 28 October 2024.

The final major piece of legislation implementing the Act has recently slotted into place. The Government has made the main commencement regulations and published them on the legislation website.

This confirms that the starting date of the Act will be 28 October 2024, and is not affected by the general election. The commencement regulations bring the main parts of the Act into force and set out the rules for transition from the existing regimes to the new one.

 

What does this mean?

The existing regulations (eg, the Public Contracts Regulations 2015 (the PCRs) or the Utilities Contracts Regulations 2016 (the UCRs) will continue to apply to procurements that “started” under those regulations on or before 27 October. This includes:

• awarded contracts, framework agreements and dynamic purchasing systems;
• contacts with suppliers to commence special arrangements contracts (under the UCRs) or direct awards;
• the publication of a voluntary transparency notice about a direct award;
• the publication of a contract notice; or
• the publication of a PIN that functions as a call for competition (for non-central government bodies under the PCRs or utilities).

This means that the existing rules will continue to apply the contracts, frameworks, dynamic purchasing systems and other procurement activities started under the current regime by 27 October. So, where a contracting authority publishes a contract notice on that date, it will use the existing rules to run the procurement and manage the contract throughout its life, including any extensions.

 

Minor changes to the existing rules

The commencement regulations make minor changes to the operation of the existing rules:

• Any dynamic purchasing systems or qualifications systems (under the UCRs) cannot change after 27 October 2025 and will expire on 27 October 2028 (so, a four-year sunset period).
• Where contracting authorities or utilities wish to purchase repeat works or services under an existing contract, those purchases are grandfathered into the regime under the Act.
• Under the PCRs, contracting authorities will need to publish statistics on prompt payment of undisputed invoices every six months, to align with the provisions of the Act.

 

Implications for contracting authorities and suppliers

Contracting authorities will now need to accelerate their preparations for the Act. This will require:

• Reviewing existing procurement processes. At a minimum, this requires contracting authorities to ensure that they have the right processes in place to:
  
  • manage the new conflicts of interest and exclusions process under the Act; and
  • publish the significant number of new notices required under the Act.
• Ensuring procurement teams receive proper training.
• Making sure that they apply the right regime to the contracts they manage.

More widely, contracting authorities should consider how they can take advantage of the next flexibilities provided for under the Act.

Suppliers will need to understand that things are changing:

• They face new processes and requirements from contracting authorities, and there will be a period of uncertainty as the new rules bed in.
• There are new grounds on which they can be excluded from competitions, have existing contracts terminated and be excluded from future competitions, including unsatisfactory performance on existing contracts.
• New provisions are implied into public sector contracts with which suppliers will need to comply.
• The ability to challenge contracting authorities' judgements is constrained.

Suppliers will need to ensure that they are ready to support contracting authorities with the introduction of the new regime. They also need to have good oversight over their portfolio of public sector contracts to ensure any difficulties under one do not affect other contracts or their ability to do business with the public sector more generally.

DLA Piper provides a full range of services to help contracting authorities and suppliers get ready for the Act and get to grips with its new requirements. Please get in touch with any of the contacts below to discuss how we can help.

In addition, DLA Piper provides a new web tool guiding contracting authorities and suppliers through the main new procurement procedure, the competitive flexible procedure. Our Procurement Reform Hub contains a wealth of materials on the new Act, including all our blog posts and webinars.

For more information, please contact our Procurement team.