Implementation of the Procurement Act 2023 has been delayed!

A new implementation date for the Procurement Act 2023 has been announced. Originally due to be implemented later this month the Government wants time to reassess the National Procurement Policy Statement announced by the previous government.

All public sector procurements from that date that are over the various value thresholds required to follow that procedure – from market testing through into contract mobilisation and performance in a  novel broadening of the public sector transparency duty.

The Act creates a single legal framework consolidating the rules for the procurement of public contracts, utilities contracts, concession contracts and defence and security contracts under one Act.

Importantly, different rules will still apply to different types of contracts, depending on their nature and value.

So what are the key points to be aware of?

Firstly the Act restates the procurement objectives that contracting authorities must follow.

When undertaking a procurement the following objectives must be observed:

• delivering value for money,
• maximising public benefit,
• sharing information and
• acting with integrity.

Observing a new National Procurement Policy

The Act will require certain contracting authorities to follow the National Procurement Policy Statement, which sets out the government's priorities and expectations for public procurement.

More flexibility in choosing procedures

The Act will give authorities more freedom to choose the most suitable procedure for their procurements, as long as they comply with the principles of transparency, equal treatment and competition.

Open and Direct Award Procedures are maintained

The Act will retain the open procedure, which allows any interested supplier to submit a tender, and the direct award, which allows contracting authorities to award a contract without competition in certain circumstances, which are more explicitly defined.

Give a welcome to the “Competitive Flexible Procedure”

The Act will also introduce a new “competitive flexible procedure”, which will allow contracting authorities to design their own procurement process, subject to some minimum requirements.

A new methodology for estimating contract values

Estimating contract value is important both to establish whether a proposed contract is caught by the procurement rules and also, once awarded, in relation to the maximum spend that can be committed when framework style arrangements in particular are adopted.

The Act will change the way contracting authorities calculate the value of their contracts for the purpose of applying the procurement thresholds. The Act will require contracting authorities to include VAT in their estimation, rather than excluding it as before. This means that some contracts that were previously below the thresholds may now be above them.

For MEAT – Read MAT!

For many years tender evaluation has involved establishing the “Most Economically Advantageous Tender”. Every reader who has had involvement in submitting tenders will know that tender requirements require submissions focussed separately on quality and price.

In future, evaluation will be based upon the Most Advantageous Tender. The aim of this change is to enable contracting authorities to give more weight to non-price factors, such as social value, environmental impact and innovation, when evaluating tenders. However, all award criteria must still be proportionate and related to the subject matter of the contract.

More transparency and feedback

The Act will enhance the transparency and accountability of public procurement by requiring contracting authorities to publish more information on the Find a Tender Service (FTS), which is the UK's official e-notification platform for public procurement. The Act will also require contracting authorities to provide more detailed feedback to unsuccessful suppliers, including the scores and reasons for their rejection.

A new remedies regime

The Act will reform the remedies regime for challenging procurement decisions, by introducing a new Procurement Division within the High Court, which will have exclusive jurisdiction over procurement disputes. The Act will also introduce new remedies, such as the power to impose financial penalties on contracting authorities that breach the procurement rules, and the power to order the suspension or termination of contracts that have been awarded unlawfully.