Procurement Bill receives Royal Assent, becomes Act

The lengthy legislative journey of the new Procurement Bill intended to reform public procurement in England, Wales and Northern Ireland has come to its conclusion, with the Bill bestowed its binding Royal Assent in late October and therefore becoming the Procurement Act 2023.

In the wake of the Act’s lawful completion and impending implementation, some significant elements to be aware of, moving forward, are as follows:

In line with original proposals for a simplified and/or streamlined system of operation, there will be only two procedures in play when the regime is live, instead of the present five. These will take the form of an open procedure, where a tender may be submitted by anyone, plus a competitive, flexible procedure, which will be reflective of cost and complexity. Designed by the authority, the latter can encompass multiple rounds of supplier assessment.

Authorities themselves will be scrutinised via KPI performance measurement on contracts exceeding £5m in value, with checks to take place on an annual basis (at a minimum) and compliance reporting to accompany this work. The authority will be responsible for setting and publishing at least three KPIs.

External auditing in line with the new laws will be conducted by the Cabinet Office’s Procurement Review Unit, while what is promoted as a “national ‘debarment list’” will supplement mandatory and discretionary exclusion grounds, with the goal of weeding out undesirable suppliers effectively.

In terms of specific, personal responsibilities, the new regime will see both open and competitive/flexible procedures require an initiating ‘tender notice’, while contracting authorities who anticipate a total spend exceeding £100m on particular procurement types (within the next financial year) will be needing to issue a ‘pipeline notice’ to ensure compliance at this stage. Whenever a direct award is made, a ‘transparency notice’ must meanwhile be published publicly.

The importance of transparency was a factor repeatedly highlighted during the Procurement Bill process and, with that in mind, any payments exceeding £30,000 must be published, while, in cases of contracts worth over £5m, the relevant modification must be published along with the particular contract.

Among other forthcoming requirements will be the mandatory publication of ‘contract change notices’ in advance, as well as the publication of ‘contract termination notices’ on all terminations, even in cases of a standard expiry or a successful performance by the specific contractor. To allow other authorities to exclude suppliers from tenders, notices of contract performance failures are also required to be published, following a period of opportunity to improve.

A couple more changes to take on board; the new regime will see contract award notices published prior to entering into a contract (something often done on a simultaneous basis, as things stand). Authorities will need to pay invoices within a 30-day window (if undisputed) and suppliers must likewise compensate their sub-contractors using a standard, 30-day timescale.

Notably, open frameworks will allow framework agreements the option to remain in place for up to eight years in total, with the function available to open up the framework at pre-established junctures, allowing newcomers to join, as well as offering existing suppliers the chance to update their own bids.

So, what next?

As the picture of life under the Procurement Act 2023 becomes increasingly clearer, stakeholders are advised to impose new emphasis on communication and education surrounding the new regime, absorbing as much information as possible to get and stay ahead of the game in 2024, while engaging and co-operating with suppliers, customers, clients and providers to minimise any disruption or confusion in this extended time of regulatory upheaval.

CPC will be among the UK’s leading public procurement experts in delivering relevant updates, professional guidance and more as this turbulent transition period stretches towards legal implementation (most likely, late next year).

By working with us, we hope to help you minimise that turbulence, to the benefit of your institution, staff and students; simply get in touch at your convenience for a discussion of how we can support your team directly.

The Procurement Bill's path to become the Procurement Act 2023

When sittings of the House of Lords reconvened post-summer (allowing for the consideration of the Commons’ last amendments), chamber incumbents including the UK Cabinet Office’s Minister for State, Baroness Neville-Rolfe, Labour’s Baroness Hayman of Ullock and the Liberal Democrats’ Baroness Brinton, would debate some of the final details of the Bill and its legalisation.

However, with many of the nuts and bolts of the Bill already firmly in place, the session’s attention would largely revolve around the integration of more robust security measures, as intended to restrict any potentially hostile suppliers from overseas using public contracts as a means of compromising the UK state.

There was, meanwhile, uncertainty over how definitions of social value would play a greater or lesser role in the Bill’s final form, with Amendments 4A and 4B invoking impassioned discussion as the process approached its finale.

Some stakeholders had hoped the Bill might have been rubber-stamped and finalised into the Procurement Act prior to Parliament’s six-week hiatus, but the importance of appropriate periods of scrutiny from both houses dictated the Bill’s parliamentary pathway would spill into the autumn. Nevertheless, long-haul followers of the Bill’s steady progress may have felt a degree of relief when it finally crossed the finish line, on Thursday 26th October.

At CPC, we have covered the progress of Procurement Bill reform for our member institutions with interest, offering training via the CPL Learning platform and providing regular updates in our regular CPC Newsletter.

Days after its arrival in the Commons in January, we recapped the premise of the Procurement Bill project for our first newsletter of 2023 and drew attention to a series of open-access webinars. Then, in March, we cast an eye on the Bill’s evolution, looking back on its initial path through the Lords and onto its Commons Report Stage, while breaking down some procedural elements.

In April, we shared news on the possibility of parliamentary ping-pong in relation to the Bill, amidst a host of other information supplied by the UK Government’s ‘Transforming Public Procurement’ team. Meanwhile, our June/July issue highlighted the extension of the eventual grace period to October 2024, as well as compiling fresh details and relevant reminders.

As well as keeping our stakeholders informed in this period of change, CPC membership allows institutions to reap the benefits of CPL Learning support, guidance and resources, with members in search of further Procurement Bill advice encouraged to contact our educational wing via CPL.Group/Learning.

Now, as we prepare for the expected arrival of the Procurement Act regime in October 2024 (following its six-month period of notice), we are eager to offer ongoing support on this new journey, as procurement collectively adjusts to operate under these jurisdictions, to be ushered in in less than a year’s time.

Together, we aim to support, plan and deliver, enabling your transition to life under the Procurement Act to be as smooth as we can make it, helping you to hit the ground running and capitalise on opportunities this reform may present.

For now, here’s some of the latest information we thought we should highlight.

The Cabinet Office has this month reiterated its intention of rolling out what it describes as “a comprehensive programme of learning and development” for procurement and commercial professionals, as well as others whose roles are impacted by the changes, but was yet to propel the complete set of resources out into the public domain, at least at the time of writing in November of 2023.

After a degree of public consultation in 2023, secondary legislation connected to the finalised Procurement Act is earmarked for publication early in 2024 and is anticipated to somewhat assist in the transition to the incoming regime itself, bringing some of its wider elements into effect.

Finally, more than one government resource has alluded this month to the transition process perhaps exceeding the expected six-month notice spell, albeit with little in solid detail beyond this to accompany the remarks. As a result of the current slight unclarity, we advise readers to err on the side of caution and prepare for an October 2024 go-live, with our support to hand.

To read the full and finalised Procurement Act 2023 document, click here and watch out for further updates from CPC over the months ahead.

*UPDATE* With the Procurement Bill finalised as the Procurement Act 2023 and the legal implementation of its newly established procurement regulations on the horizon in 2024, the UK Cabinet Office has published the first of its advertised ‘Knowledge Drops’; a set of informative videos, accessible on demand, designed to support stakeholders by summarising changes to the prior procurement regulations. The new Knowledge Drop videos are intended to help those who have regular dealings or interactions with the procurement function and would therefore benefit from gaining understanding of the new legislation at a fundamental level. Click here to learn more about Transforming Public Procurement's Knowledge Drops.