The Procurement Act 2023: death by a thousand notices?

One of the goals of the Procurement Act 2023 (Act) 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.

What you need to know

• The Act applies to procurements commenced on or after 24 February 2025.
• The Act introduces new procurement notices covering the entire procurement lifecycle.
• Procurement notices will need to be published throughout the lifetime of contracts to provide information about contract performance.

Background

The Act came into force on 24 February 2025. A key pillar of the reforms to the procurement regime introduced by the Act is increased transparency. Enhanced requirements relating to the publication of notices are central to the delivery of the transparency ambition. More specifically, contracting authorities will be expected to publish a number of new notices throughout the procurement lifecycle on the "central digital platform".

The Act contemplates five general stages of a procurement: (i) planning, (ii) tender, (iii) award, (iv) contract, and (v) implementation. Under the previous regime, mandatory transparency requirements applied only at the tender and contract stages. However, the Cabinet Office is of the view that there is a lot of valuable information produced in the other stages, which should be published.

Planning

The notices to be published at the planning stage include:

• Pipeline Notice: this is an announcement made before the start of the financial year (1 April) detailing procurement plans for the next 18 months.
• Preliminary Market Engagement Notice: this notice is used to invite suppliers to participate in preliminary market engagement or to notify the market that engagement has taken place.
• Planned Procurement Notice: this is an optional notice which is used to provide advance notice of an upcoming procurement and is designed to give as much advance information to the market as possible to enable suppliers to determine if the upcoming procurement is something that they wish to bid for.

Tender

The notices to be published at the tender stage include:

• Tender Notice: this is the new name for a "contract notice". This notice must be published to commence a competitive tendering procedure.
• Transparency Notice: this notice must be published before any direct award to allow interested parties to consider the justification for the direct award.
• Below threshold tender notice: when a contracting authority intends to advertise a "notifiable" below-threshold contract, it must first publish a below-threshold tender notice on the central digital platform.

Award

The notices to be published at the award stage include:

• Contract Award Notice: this notice must be published when the contracting authority intends to award a contract. The Contract Award Notice serves a different purpose to the notice with the same name under the previous regime, which was not published until after the contract had been concluded.
• Procurement Termination Notice: this notice informs the market that a contracting authority has decided not to award a contract and to terminate the procurement.

Contract

The notices to be published at the contract stage include:

• Contract Details Notice: this notice is used to inform suppliers and the public that a contract has been concluded. This notice essentially replicates the purposes of the contract award notice under the previous regime. Where a public contract has an estimated value of over £5 million, the Contract Details Notice must also provide access to the contract and details of the three key performance indicators (KPIs) that the contracting authority regards as most material to performance of the contract obligations.
• Below-Threshold Contract Details Notice: this notice is used to inform suppliers and the public that a notifiable below threshold contract has been concluded.

Implementation

The notices to be published during the performance of the contract include:

• Contract Change Notice: this notice must be published when a substantial or above-threshold modification is made to a contract. Unlike the previous regime, the publication of a Contract Change Notice will therefore be required whenever substantial modifications are made to a contract.
• Contract Performance Notice: this notice fulfils two functions: (i) recording the performance of suppliers against key performance indicators (KPIs); and (ii) recording information relating to particular breaches or failure to perform a public contract except where the breach results in a contract being terminated in full (in which case a contract termination notice must be published).
• Payments Compliance Notice: this notice sets out the extent to which, over a reporting period of six months, the contracting authority has paid its invoices in accordance with the requirements stipulated in the Act. It also includes other reporting requirements relating to when invoices were paid.
• Contract Termination Notice: this notice must be published following the termination of any public contract, irrespective of the reason for termination.

Comments

These new notice requirements increase the administrative burden of contracting authorities. Contracting authorities will also need to adopt new internal processes to ensure that they are complying with their transparency obligations. More generally, contracting authorities will need to pay more attention to compliance with their procurement law obligations as they are now under an obligation to publish information about the steps they have been taking to ensure compliance.

There are, however, potential benefits to contracting authorities associated with the wider reporting about contract performance. In particular, this should incentivise suppliers to achieve greater performance levels and it should make it easier for contracting authorities not to award contracts to unreliable suppliers.

Suppliers will benefit from increased transparency in relation to upcoming procurement opportunities. They should also have increased opportunities to scrutinise controversial decisions such as direct awards and contract modifications. However, the increased transparency is double-edged in the sense that information about suppliers' performance will become publicly available and a supplier's poor performance of a public contract will therefore become a matter of public record.

Want to know more?

• Procurement Act 2023: Support and resources hub https://www.ashurst.com/en/insights/procurement-act-2023-support-and-resources/