UK Public Procurement Reform Webinar: Your first procurement under The Procurement Act 2023

Thanks to all that attended our recent webinar on preparing for your first procurement (whether as a contracting authority or a supplier) under the Procurement Act 2023. The recording of that webinar is now available on our procurement reform hub at this link.

During the webinar, we invited questions from the attendees. This blog contains those questions and our responses.

 

If a contracting authority starts a procurement after 24 February 2025 sourced from UDVB (a qualification system established under the Utilities Contracts Regulations 2016 (the UCRs)) do the UCRs still apply? Or is it just that the event can continue if you started it on UCR on 23 February 2025? In previous correspondence we had a 6-month period where you had to have published a PIN by 26 May 2023 to allow for UCR tenders that will continue for a period of 12-18 months.

Utilities can continue to use existing UCR qualification systems, such as UDVB, until such systems expire, with a longstop of 23 February 2029, that is, four years after the coming into force of the Procurement Act 2023. The UCRs will continue to apply to the procurement of the relevant contracts under the qualification system (both before and after 24 February 2025) and their ongoing contract management, e.g., modifications.

The date of 26 May 2023 referred to the publication of a prior indicative notice (PIN) under the UCRs that was intended to function as a call for competition. Any competitions continuing following a PIN published before that date will continue under the UCRs and the resulting contract will be managed under the UCRs. The date of 26 May 2023 refers to the date on which the provision in the UCRs allowing the use a PIN as a call for competition was repealed. After that date, it was no longer possible to use a PIN in that way.

 

If a contracting authority does not have a pipeline of over GBP100m per annum, can it or should it publish a pipeline notice as best practice?

In brief, yes. Please note, however, that the GBP100m threshold figure includes all payments that the contracting authority will make in that year under contracts for the supply of goods, services and works, other than contracts that are exempted contracts under the Act. This includes below-threshold contracts and call-off contracts under frameworks.

The Cabinet Office's guidance on pipeline notices states that contracting authorities that are uncertain whether they will meet the GBP100m threshold should publish a pipeline notice, while those that do not meet the threshold can publish a voluntary notice.

 

If a new procurement above GBP2 million is required after publishing the pipeline notice is a new pipeline notice required?

There is no legal requirement to update a pipeline notice after it is published, either to add new procurements or to remove procurements that are discontinued or delayed. The non-inclusion of a procurement valued at over GBP2m in the pipeline notice does not impact the ability of the contracting authority to proceed with the procurement. However, a contracting authority can update its pipeline notice at any time, and the Cabinet Office guidance encourages them to do so.

 

How long roughly would it take a supplier to complete the registration process? Is there a "completed" status once the submitted information has been validated?

We think that suppliers will require the most time to gather the exclusion information on their connected persons and ensure that their proposed sub-contractors are properly registered and have uploaded all relevant information to the central digital platform. Each supplier will need to confirm that none of the mandatory or discretionary grounds apply to it or any of its connected persons. If they do, then the supplier concerned with need to document the self-cleaning it or its connected person has undertaken by reference to the relevant criteria in the Act and the Procurement Regulations 2024.

Similarly, if a supplier is tendering for an opportunity as a prime contractor with one or more identified sub-contractors, it will need to ensure that the sub-contractors compile the relevant information for both themselves and any connected persons. Again, if an exclusion ground applies to the sub-contractor or a connected person of the sub-contractor, then the sub-contractor will need to document the self-cleaning undertaken.

For suppliers with complex structures or significant supply chains, this activity will take some time to complete.

 

If a contract has more than three key performance indicators (KPIs), does the contracting authority have to report and publish on all contractual KPIs.

The Government has recently made regulations to clarify the position concerning the publication of KPIs. These make it clear that where a contracting authority has set more than three KPIs in relation to a contract it need only publish in the contract details notice the three that it regards, at the time the notice is published, "as most material to performance of the contract obligations".

Similarly, the new regulations state that contract performance notices need only refer to three KPIs, being those that "the contracting authority regards, at the time the contract performance notice is published, as most material to performance of the contract obligations".

This means that where a contracting authority sets more than three KPIs it will need to consider, both at the time of the details notice and at the time of each contract performance notice, which three of the KPIs is most material, and publish the details or assessment of those, as appropriate.  The approach acknowledges that the three KPIs which are the “most material” to contract performance, and therefore reported on, may change over the life of a contract. Contracting authorities will, therefore, have greater flexibility to focus on those KPIs calculated to improve contract performance during the contract lifecycle.