Procurement Act 2023: "going live" on 28 October 2024

The Procurement Act 2023 received Royal Assent on 26 October 2023.  This creates a new public procurement rulebook in England, Wales and Northern Ireland. It is part of Government's strategy of overhauling EU-derived legislation following Brexit. The Act is not yet in force, but the Cabinet Office has now set an intended "go live" date of 28 October 2024. Procuring authorities and bidders for public sector contracts now have six months to prepare.

Key takeaways

• The Procurement Act received Royal Assent in October 2023.
• The secondary legislation needed to give effect to the new regime was laid before Parliament in March 2024.
• The Cabinet Office is working towards a "go live" date of Monday 28 October 2024.
• The Cabinet Office is currently issuing statutory guidance and various training initiatives to help stakeholders prepare for the new regime.

Procurement Act 2023 – "going live" on 28 October 2024

On 22 April 2024, the Cabinet Office informally announced that it is "working towards a go-live date" of Monday 28 October 2024 for the Procurement Act 2023 to come into force. The date will be formalised in commencement regulations, which are expected to be laid before Parliament in May or June. 

Background

EU Member States are required to implement and apply various EU directives on public procurement. As result, the UK Government did not have control over the scope of its public procurement rules prior to the end of the Brexit transition period. This has all changed and, as part of delivering Brexit, the Cabinet Office launched its "Transforming Public Procurement" project in December 2020 with the aim of overhauling the UK's existing public procurement rules.

Following extensive consultation with stakeholders, the Procurement Bill was laid before Parliament on 11 May 2022 (see our July 2022 update).  The Procurement Act ultimately received Royal Assent on 26 October 2023. However, it did not enter into force immediately as secondary legislation needs to be laid before Parliament to give effect to the new regime and the Cabinet Office was keen that stakeholders have the opportunity to prepare for the new regime.

Summary of reforms

Many aspects of the Procurement Act are based closely on the existing rules. This is unsurprising given that: 

• the UK is a signatory to the World Trade Organization's Agreement of Government Procurement (GPA) so the Procurement Act needs to be consistent with the base level rules in the GPA, which require signatories to establish rules that ensure open, fair and transparent conditions of competition in covered procurements; and
• the UK has concluded a number of international trade agreements, including the EU-UK Trade and Cooperation Agreement, which provide for certain reciprocal access rights to certain types of government procurements.

Helpfully, a key objective of the Procurement Act is simplification. In particular, the current EU-derived public procurement rules are complex and are derived from a patchwork of different directives. The Procurement Act introduces a number of changes which should make procurement processes easier to understand. Most importantly, the Procurement Act: 

• establishes a single regulatory framework for the award of public sector contracts; and
• replaces the existing award procedures with fewer, more flexible procedures.

However, there are a number of significant areas of change which both procuring authorities and bidders for public sector contracts will need to familiarise themselves with over the coming months. Key reforms include: 

• replacing the fundamental EU procurement principles of equal treatment, non-discrimination, transparency and proportionality with similar, but different, overarching principles including delivering value for money, maximising public benefit, sharing information about procurement policies and decisions and acting with integrity;
• new types of procurement notices and new rules on when notices must be published;
• contracting authorities will have enhanced powers to exclude suppliers from procurements with key changes including the introduction of a central list of debarred suppliers; and
• an increased focus on contract performance, including new rules on publishing information on supplier performance against key performance indicators.

Secondary legislation and further guidance

In March 2024, the Procurement Regulations 2024 were laid before Parliament to bring some elements of the Act and the wider regime into effect. 

The announcement of the 28 October 2024 "go live" date is intended to mark the beginning of the six month preparation period. The Cabinet Office has indicated that the following activities will take place ahead of that date to ensure stakeholders are ready for the new regime:

• publication of guidance on the Procurement Act;
• launch of various tailored training programmes for procurement practitioners;
• a supplier information campaign; and
• publication of e-Learning content and further learning aids.

The Transforming Public Procurement website contains a range of information about the procurement reforms, including "Knowledge Drops" aimed at both contracting authorities and suppliers. You can also register for updates from the Cabinet Office on the reforms by completing this form.

Transitional arrangements

On 22 April 2024, the Government published guidance on transitional and saving arrangements. In short, the existing rules will continue to apply for procurements that were "commenced" before the Act entered into force. For these purposes, a procurement will be treated having commenced before the Act entered into force if a call for competition has already been published.