The Procurement Bill, which has been in debate in both houses of Parliament became the Procurement Act 2023 on Thursday 26th October 2023 as Royal Ascent was granted.
At the time of writing the Act is not yet available on the www.legislation.gov.uk website but is expected soon.
There will need to be secondary legislation, in the form of regulations, to implement the Act and the wider regime, and consultations on some of these have already been undertaken.
The Act is expected to come into force late in 2024 but in the meanwhile those working in the public sector can prepare themselves through the training to be provided by the Government by signing up here: https://www.gov.uk/government/collections/transforming-public-procurement.
Further details of the training are available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1139186/TPP-LandD-offer-Feb2023-.pdf.
The Act is a departure from the Public Contract Regulations 2015 (PCR2015) that were the UK implementation of EU procurement regulations. The new Act is intended to make working with the public sector easier for businesses and make it more accessible to small businesses in particular. Simpler, more flexible, provisions will have been developed without conflicting with the UK's international obligations. Greater transparency throughout the process is intended to ensue greater scrutiny.
Procurement procedures under the new Act will remove the defined 'restrictive' process but the procurement will continue to need to be a competitive tendering procedure.
19 Award of public contracts following a competitive tendering procedure (1) A contracting authority may award a public contract to the supplier that submits the most advantageous tender in a competitive tendering procedure. 20 Competitive tendering procedures (2) “competitive tendering procedure” is— (a) a single-stage tendering procedure without a restriction on who can submit tenders (an “open procedure”), or (b) such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the public contract (a “competitive flexible procedure”). Extracts from Sections 19 and 20 of the Bill
It has been speculated that despite the greater flexibility offered by section 20(2)(b) early procurements under the new Act are likely to largely reflect the current restricted process, as public bodies exercise caution before case law establishes the limits of the flexibility offered.
Other key aspects of the new Act include:
A requirement for the publication of Key Performance Indicators and the publishing of contractors' performance against these;
New arrangements for notices for many aspects of contract changes during the course of a contract
New powers for contracting authorities to exclude tenderers on the basis of a serious breach of contract, or where the contractor has failed to provide to the customer's satisfaction, despite the issue of a formal notice.
All supply chain members will need to meet mandatory and discretionary exclusion grounds, ie not just those sub-contractors on which the tenderer relies to deliver the contract.
Details of future procurement plans to be made available through 'Pipeline Notices', although this is only for contracts anticipated to be worth more than £2m where the total expenditure in the coming financial year for all relevant contracts is anticipated to exceed £100m, and so not likely to be relevant to many social housing contracts.
As ever, the implementation of the new Act will bring about a number of issues to be considered by contracting authorities and contractors alike.
This is a major new piece of legislation and it covers a broad range of issues relevant to public sector procurement and this post only touches the surface but we will continue to comment as the implications become clear.