Three years following the publication of the Green Paper: Transforming public procurement, the Procurement Bill received Royal Assent on 26 October 2023, meaning the UK now has new a Procurement Act 2023 (“Act”).
While this is a significant milestone to “transforming public procurement” in the UK, there is still a lot of work to be done to support its implementation and to understand how it will operate in practice.
In recent communications, the Cabinet Office has stated that it is planning for the necessary secondary legislation to be laid early next year and anticipates the new regime will come into effect from October 2024. It will only be once we start to see more of the detail that we will get a better idea as to how the new regime is intended to work.
The transformational impact of the Act will be dependent on how the new regime is implemented in practice by procurement teams. Therefore, the Cabinet Office’s promised six-month preparation period is welcome, but vital to the Act’s success will be the need for already over-stretched procurement teams to have the resources to deliver on their “day job” whilst still being able to make the most of the Cabinet Office’s learning offerings. Making the most of these offerings is, in turn, crucial to understand the new regime and, from that, take full advantage of its perceived greater flexibilities. There is also a risk, given the flexibility in the new regime, that without sufficient resources to make the most of the six-month preparation period, procurement teams will fall back onto what is familiar; this may result in any envisioned transformational impact of the new regime being lost in practice.
What can be done now?
We encourage all stakeholders (including authorities and suppliers) to start familiarising themselves with the new regime and to prepare to update their policies, procedures, and materials/tools. We have been providing training to clients on this topic and would be happy to assist in this preparation. We also recommend keeping an eye out on the Cabinet Office’s learning offerings noted above, which we understand will be launching in December this year.
Has the Act achieved what it set out to do?
The Government’s policy objectives for the reforms were:
(House of Lords Library Briefing, 20 May 2022)
Although it is too early to conclude whether the Act has achieved the Government’s stated policy objectives, it is difficult to see how some of the key changes (see below) support them. For example, a key change is the additional transparency requirements beyond those under the current regime. Despite greater transparency being a noble cause, enforcing more onerous transparency requirements as a prerequisite would not appear “to speed up and simplify public procurement processes”. We will be revisiting this question (of whether the Act has achieved what it set out to do) in later articles.
So, what are some of the key changes?
Over the next 12 months, we will be focussing on particular aspects of the Act and its implementing secondary legislation. However, in summary, we consider the below to be some of the key changes under the Act:
As stated above, there is still a lot of work to be done to support the implementation of the Act and to understand how it may operate in practice.
Will it be that much of a transformation in reality? Time will tell.
If you have questions or would like to know how we think it will work on the ground, then please do get in touch!