Are you ready for the Procurement Act 2023?

The Procurement Act 2023 came into force on 24 February 2025. It consolidates and repeals the following Regulations:

1. The Public Contracts Regulations 2015
2. Utilities Contracts Regulations 2016
3. Concession Contracts Regulations 2016
4. Defence and Security Public Contracts Regulations 2011.

Procurement procedures

As part of the Act’s efforts to simplify and create more flexibility within the new procurement regime, there will now be two primary routes to market:

1. The open procedure, being a single-stage procurement process pursuant to which any bidder who can fulfil the requirements of the contract can submit a tender
2. The competitive flexible procedure, this being “such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the public contract”.

Notwithstanding the simplification of the routes to market, it is unlikely that we will see substantive change overnight. The well-trodden open procedure will remain available to contracting authorities, whilst the new, competitive flexible procedure will not prevent them from adopting processes that are in practice similar to the previously used procedures. It is very possible that the adoption of new and innovative procurement processes will be a matter of evolution and not revolution.

Exclusion and debarment

Although the concepts of mandatory and discretionary grounds for exclusion remain, any supplier to whom a ground for exclusion applies will now be known as “excluded” if a mandatory ground applies – or “excludable” if a discretionary ground applies.

An excluded supplier must not be awarded a public contract or otherwise take part in a public procurement exercise, whereas an excludable supplier may, at the discretion of the contracting authority, not be awarded a public contract or take part in a public procurement exercise.

The Act also creates a new debarment list, which will be managed by the newly-formed Procurement Review Unit. Under the Act, any supplier can be the subject of an investigation to determine whether an exclusion ground properly applies to them. If it is determined that a supplier is either an excluded or excludable supplier, the name of that supplier can be entered onto the debarment list.

Before the supplier’s name is entered onto the list, there will be an eight-working day standstill period. Provided that an application to the court objecting to the decision to enter a supplier onto the list is issued within the standstill period, the entry of the name onto the list will be suspended. The decision to enter the supplier’s name onto the list will also be subject to a thirty-day limitation period.

Transparency

There is increased transparency under the Act and the supporting regulations which require contracting authorities to publish notices throughout the whole of the procurement cycle on the government’s ‘Find a Tender’ platform.

For applicable contracts, in addition to giving notice in respect of tender opportunities and contract awards, public bodies will be required to publish preliminary market engagement notices and pipeline notices at the pre-procurement stage.

Notably, transparency extends beyond the procurement process to the performance of the contract. The Act introduces a contract management regime under which, amongst other things, public bodies will need to publish notices in respect of payments made under the contract, the supplier’s performance of the contract against pre-established Key Performance Indicators, and termination of the contract.

Standstill period

The concept of a standstill period remains under the Act. This is the period following notice of a tender award during which the contracting authority cannot enter into the contract with the winning bidder. Issuing proceedings within the standstill period imposes an ‘automatic suspension’ which prevents the contracting authority from entering into the contract unless the court orders otherwise.

The standstill period is, however, changing from 10 days to eight working days. Under the previous regulations a claim issued outside of the 10-day standstill period would still trigger the automatic suspension. However, the wording of the new Act suggests that proceedings issued outside of the eight-working day period but before the contract is entered into will not benefit from the automatic suspension.

It remains the case that the standstill period will not apply in all circumstances, for example where a contract is called-off from a framework.

Remedies

Remedies are largely unchanged. There is a new test to be applied when determining whether to lift the automatic suspension. This requires the court to have regard to:

• The public interest in upholding the principle that public contracts should be awarded, in accordance with the law
• The public interest in avoiding delay in the supply of goods, services or works provided for in the contract
• The interests of suppliers, including whether damages are an adequate remedy for the claimant
• Any other matters that the court considers appropriate.

It remains to be seen what impact the new test will have in practice.