The government’s bid to “transform public procurement” in the UK has now reached the statute books, with the Procurement Act 2023 receiving Royal Assent on 26 October. The new regime is to come into effect in October next year and construction procurement professionals will be spending a great deal of time between now and then getting ready for the implementation.
Exactly what to get ready for though isn’t yet clear, and we await details of the secondary legislation that will no doubt have to be subject to some extremely close reading to ensure that suppliers don’t find themselves inadvertently bumped off tender lists for non compliance with the new regime. The Cabinet Office says it will unveil the secondary legislation early in 2024, although with a general election looming the Cabinet Office might easily find itself diverted to more pressing concerns.
The relevant Green Paper – Transforming Public Procurement – was published three years ago so the Cabinet Office should be up to speed on the secondary legislation. Only when the detail is revealed can procurement professionals start to work out how the “transformational” system is to work in practice. Policies and procedures of all public sector suppliers will have to be carefully examined for compliance with the new regime, and amended where necessary.
The Cabinet Office has promised that a six month preparation period between publication of the secondary legislation and implementation will be allowed; it could be more than problematic for some if that six months slips. Guidance will be issued from December, the Cabinet Office has intimated.
With what is already known it is already worth asking whether the Act will achieve its policy objectives of what has been billed as an evolution rather than a revolution in procurement. The objectives were to reform and reset existing European Union based laws following Brexit, to speed up and simplify procurement processes; to put value for money at the centre of procurements; and to harness innovation by creating greater opportunities for small businesses and social enterprises.
Not everything in the Act encourages the hope that public procurement will be speeded up and simplified. For example, there is an enhanced requirement for transparency that will almost certainly sometimes cause delay. Under the current procurement rules “contracting authorities” are supposed to treat economic operators equally and without discrimination, and act in a transparent and proportionate manner. This was to open up public procurement markets within the EU to cross-border competition.
The new regime requires contracting authorities when letting contracts that fall under the Act to “have regard” to a range of factors such as delivering value for money, maximising public benefit, providing transparency and the sharing of information, and acting, and being seen to act, with integrity.
Lack of transparency has regularly been grounds for challenges to contract awards under the old regime. The new Act seems to some to place more emphasis on equal treatment for suppliers than on transparency. Given the greater flexibility now being given to contracting authorities in what competitive procedures to adopt, it is feared this new emphasis could open up the possibility of less transparency in procurement. Evolution can of course lead to more disruption than revolution, so careful attention must be paid to the detail of whatever guidance the Cabinet Office issues and to the published detail of the secondary legislation.
Nick Barrett
Editor