The Procurement Bill received Royal Assent on 26 October 2023 and is now the Procurement Act 2023. It will go-live in October 2024 (with a six months notice period ahead of that date). As with the introduction of the Public Contracts Regulations 2015, implementation may be in successive phases.
This is the fourth regime of public sector procurement in the modern era – Compulsory Competitive Tendering, Best Value, PCR 2015 and now the post-Brexit, NHS inclusive, Procurement Act 2023
So what does it mean?
Public sector procurement accounts for about one third of all Government expenditure: As Minister Lord True told the House of Lords at the Second Reading of the Bill;
“Public procurement is one of the most important and influential duties of Her Majesty’s Government: £1 in every £3 of public money—some £300 billion a year—is spent on public procurement. Imagine the power of the most efficient and effective use of that money every year. Imagine the extra small businesses that we could help to hire more workers, expand their operations and contribute to the wealth of this nation. Imagine the efficiencies that we could achieve so that we could spend more on our National Health Service and other vital public services[1]”.
The new Act introduces a new supplier selection regime, based on principles including non-discrimination, fair treatment, value for money, maximising public benefit, transparency, and integrity.
VfM is the core principle which public sector decision makers MUST be able to demonstrate. There is also a new requirement which makes public sector buyers take a broad view and take account of the national strategic priorities set out in the National Procurement Policy Statement (NPPS).
The NPPS asks public authorities to consider wider public benefits, such as creating new (local) jobs, tackling climate change, improving the diversity of their suppliers, and innovation throughout the procurement process. It also allows authorities to support local community priorities through public purchasing.
This being a post-BREXIT law, the new regime brings together four previous sets of procurement regulations, which transpose EU Directives into a single UK law for contracts, awarded by most central government departments, their arms-length bodies and the wider public sector including local government, health authorities and schools
- utilities contracts by utilities operating in the water, energy and transport sectors. It would not cover private utilities operating on a competitive market
- concession contracts for the supply of works or services where public authorities give a supplier the right to exploit works or services
- defence and security contracts.
The Act applies to procurement by devolved authorities in Wales and Northern Ireland. Scotland, however, maintains its own legal framework.
The Government aims to establish a single portal for accessing procurement data, a public debarment list for excluded suppliers, a ‘tell us once’ system for supplier registration and other innovations.
At UKPL we guide our clients through the political, policy and legalistic processes and work with a huge range of Local Authorities, NHS England and our legal partners, FREETHS, acknowledged as one of the leading centres of excellence on procurement law.
Our experience shows that whilst it is possible to win a tender from a standing start — we have just this month successfully taken market entrant “ThinkCyber” onto the Framework for cybersecurity suppliers in Scotland, their first foray into the UK, it is better to be in at the ground floor. Shaping the strategy and complementing the awarding bodies objectives are more fruitful in the long term for both parties – that’s is why we believe in partnership.
[1] House of Lords Hansard, 25th May 2023 Column 856
