Procurement Act 2023 - Rules Change on 24th February

The PA23 makes changes all the way through the procurement process from steps before the formal procurement process starts all the way through the award process into contract management and termination.  The biggest external indicator of that change will be a lot (and we mean a lot) more publicity around procurements and public contracts in operation. There are 26 separate things that the new Procurement Regulations 2024 require to be published and even where notices have the same name as now, they will include a lot more information when the rules change.

 Contractors wanting to bid for public contracts will need to register themselves with the Central Digital Platform (the new name for what is currently the Find A Tender Service). What the government guidance calls “core business details” will be stored there and available to contracting authorities operating tenders. Registered information incudes contact details and also details of connected persons, qualifications, trade assurance, exclusions and financial information.  The new Act and Regulations require publication of much of this information when announcing a contract winner. Wider publication requirements after awards include the number and identities of unsuccessful bidders as well as the KPIs selected to apply to the contract and, for contracts over £5,000,000 in value, the contract itself. Authorities must publish performance assessments of contractors annually against the KPIs and publish a notice of any breach of contract by the contractor and any termination including the reason.

 As well as the Platform registration details, the government is establishing a debarment list of contractors excluded from participation in a tendering process for any of the reasons set out in the Act.  While decisions about exclusions from tenders are made on an individual authority level, ministers can decide that the circumstances causing exclusion are likely to persist and so put the contractor on the debarment list which will identify to all other contracting authorities that exclusion grounds exist. Government guidance requires all authorities to check the debarment list for every procurement they make so being on it will make a real difference. It is worth noting that  contractors with no other faults could still end up on the list as a result unacceptable behaviour in the course of a procurement or because of a connected or associated person or a sub-contractor.  Some due diligence before including third parties in your bids is going to be essential.

 Procurement procedures will change because the new Act recognises only Open (one-stage) and Competitive Flexible (two or more stages) procedures with nothing else prescribed except basic timescales for allowing bids. Authorities are otherwise free to set their own processes and criteria for procurements so they are likely to be more diverse than before making it all the more important to check out the procurement documents before starting on a bid. Dynamic Markets and Open Frameworks are introduced as ways of managing longer-term requirements where changes might be needed over time and they come with their own new rules.

 It is also important to know that the timing for standstill periods after contract awards will change under the new Act as well. The time will be 8 working days and will run from the contract award notice being published and not from the date of outcome letters to bidders. They are being replaced with “assessment summaries” which have to go out before the award notice starts the standstill period. That might not be a big change but with very short timescales for making decisions on whether to challenge a procurement result, every day matters and you need to know where to look to get the information you need to make decisions.