Background
The PA 2023 will come into force from 28 October 2024 and, whilst it will introduce change, some elements will be familiar to those with experience of the current procurement regime.
Key points to note:
Consolidation:
The existing regime, based on EU Directives, will be replaced in its entirety – no more Public Contracts Regulations 2015 or Utilities Contracts Regulations 2016, for example.
The rules remain the same, however, though there has been a move away from the language of EU directives. We may, therefore, see interpretation issues raised in the courts as the PA 2023 beds in.
Objectives and principles:
The PA 2023 introduces a wider definition of procurement, resulting in new obligations for contracting authorities before, during and after the procurement process. These include reporting on contract performance and termination.
Contracting authorities’ objectives will be to:
- deliver value for money;
- maximise public benefit;
- share information to allow suppliers and others to understand the authority’s procurement policies and decisions; and
- act, and be seen to act, with integrity.
This represents a distinct change in approach with matters such as strategic priorities and social impact, informing decision-making alongside cost-effectiveness.
Enhanced transparency:
The PA 2023 places an emphasis on transparency throughout the procurement process. Authorities will be required to disclose more information, notices and copies of contracts on a central digital platform over the duration of the procurement cycle. This should provide greater clarity for suppliers, but may result in increased administration for contracting authorities.
Contracting authorities (except where performance may not adequately be assessed by KPIs or where an exemption applies) must set and publish at least 3 KPIs, providing suppliers with clarity for performance expectations.
Streamlined procurement process:
The PA 2023 simplifies and standardises procedures for soliciting bids, evaluating proposals, and awarding contracts. The current procedures will be replaced by the following:
- direct award;
- competitive flexible procedure; and
- award under a framework.
The introduction of the competitive flexible procedure allows contracting authorities to design procurement processes to suit their specific requirements.
The PA 2023 also introduces open frameworks, allowing a framework agreement to be “rolled over” successively on substantially the same terms, up to a maximum of eight years (or four if there is only one supplier) from the first award.
Exclusions and debarment list:
Mandatory and discretionary exclusion grounds will be maintained, but with wider exclusion grounds, for example, for poor performance. The PA 2023 also provides for ‘excluded’ and ‘excludable’ suppliers.’ Excluded suppliers will be unable to participate in a tender, but excludable suppliers may be considered. The Government will manage a debarment list of excluded and excludable suppliers, which will be accessible to contracting authorities.
National Security:
There will be increased scrutiny of companies that bid for public contracts, to ensure public contracts are awarded in a manner consistent with national security. The debarment list will include suppliers who are high risk and will prevent them for bidding for certain goods or services but allow them to bid for contracts in less sensitive areas.
Specific suppliers will be kept under review for investigation regarding debarment on national security grounds.
Summary
The PA 2023 represents a shift in procurement practices, with the intention that the procurement process becomes modernised and more efficient. Contracting authorities and suppliers should take the opportunity to familiarise themselves with the new rules prior to October 2024.
If you would like to discuss or have any queries, please contact John Yates or Georgie Swift who will be able to assist you further.
