Procurement Act 2023

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. In April 2024, the Cabinet Office informally announced that it was "working towards a go-live date of" Monday 28 October 2024. On 12 September 2024, the Cabinet Office announced the Act will now enter into force on 24 February 2025 in a ministerial statement.

Under the current regime, there are five different competitive award procedures available to contracting authorities. Each of these procedures has different rules and minimum time limits. Deciding which procedure to use can often be complex. The differences between the procedures are also difficult for bidders to understand. The new regime has simplified matters. The Procurement Act 2023 provides for just two types of competitive tendering procedure: the Open Procedure and the Competitive Flexible Procedure. The new Open Procedure is very similar to the Open Procedure under the current regime. The Competitive Flexible Procedure is a competitive tendering procedure which allows the contracting authority the freedom to design its own procedure, subject to ensuring that the procedure is designed and conducted in a manner consistent with the overarching principles.

The Act maintains many of the key features of the current regime, including rules which enable contracting authorities to exclude suppliers from participating in procurements where they pose particular risks to public procurement. As is the case under the current regime, the Act defines both mandatory and discretionary exclusion grounds. Many of the exclusion grounds listed in the Act are aligned closely with those contemplated under the current regime. The most significant area of reform to the exclusions regime is the introduction of a new debarment mechanism.

When a contracting authority is planning to award a contract, one of the first questions will be to understand whether it is required to carry out a competitive procurement in compliance with the open or competitive flexible procedure. Certain types of contracts do not need to be procured competitively because of the subject matter of the contract or the identity of the counterparty ("exempted contracts"). In addition, in certain circumstances, a contracting authority can award a public contract without first running a competitive procurement exercise ("direct award").

One of the goals of the Procurement Act 2023 is to create a transparent public procurement system. In order to achieve this goal, contracting authorities are now required to publish procurement notices throughout the procurement lifecycle from planning through to contract expiry. The Act therefore introduces a number of new types of notices which contracting authorities must publish.