The UK Procurement Act 2023 - Daylight savings

Following much speculation that a delay to the original “go-live” date of the Procurement Act 2023 (the “Act”) may be required, a written statement by the UK Government confirmed that the original date of 28 October 2024 would be pushed back to 24 February 2025. This was recently legislated for by the Procurement Act 2023 (Commencement No 3 and Transitional and Saving Provisions) (Amendment) Regulations 2024 (SI 2024/959) (“Amendment Regulations”).

There have been various rumours about why a delay has been necessary, however, the official reason provided was that it is crucial that the new regime goes live with a “bold and ambitious [National Procurement Policy Statement (“NPPS”)] that drives delivery of the Government’s missions”, and, as such, extra time was required in order to develop an NPPS which is consistent with the new Government’s priorities. The NPPS is expected to do this and will be an essential element of the Act.

The UK Government is inviting contributions to the development of the NPPS via a survey. The closing date for the survey is midday on Monday 4 November 2024, and we encourage you to contribute your thoughts.

Making the most of the current regime 

Many procurement professionals focus on the obvious question of whether the sector is ready for the new public procurement regime. This is also reflected in the written statement confirming the new “go-live” date of 24 February 2025:

“the extra time to prepare will allow for a more seamless transition, ensuring a smoother and more effective implementation process for both contracting authorities and suppliers.”

Although the new UK procurement regime, has been broadly welcomed, largely due to the additional flexibility it professes to offer, it must be acknowledged that it also looks to impose new and arguably more stringent requirements for authorities, including potentially onerous transparency duties covering the entire contract lifecycle. For example: 

• for certain contracts, the need to set KPIs and annually publish an assessment of performance against such KPIs;
• the need to publish “contract change notices” prior to modifying contracts; and 
• the need to publish “contract termination notices” within 30 days of the termination of a contract. 

Importantly, the UK Government’s Guidance on Transitional and Saving Arrangements specifies that procurements commenced before the Act goes “live” will be conducted under the relevant current regime (e.g. Public Contracts Regulations 2015 (“PCR 2015”)) and that any contract subsequently awarded should be managed under that legislation (e.g. modifications to a contract procured under the PCR 2015, will be required to be modified under PCR 2015). Further, the Government Commercial Function confirmed in an update that contracting authorities that had been planning on commencing a procurement between October and February would need to make a decision whether to proceed with their planned timetable and procure under the existing regulations or to delay the start of the procurement in order to be regulated by the Act.

In light of the above, and in particular the transitional arrangements for the Act, authorities may consider that there are benefits to bringing forward the launch dates of certain procurements (e.g., business-critical projects) to procure under a more familiar regime, which many argue has less “red tape” and therefore should provide more certainty than the untested new regime. 

For those authorities who were planning on commencing procurements to fall within the current regime, they now have more breathing space to launch their procurements.

For those who were expecting to commence their procurements under the new procurement regime, this provides an opportunity to revisit their procurement strategy. This is particularly exciting for those who recognise the benefits of procuring under the current regime but didn’t think they had the opportunity to.

For those who were planning on launching after the original “go-live” date to make the most of the new regime, this provides an opportunity to consider once again the pros and cons of either procuring under the current regime or delaying the launch of their procurement to fall under the new regime.

How can we help?

As well as supporting authorities to prepare for the new regime, we have recently been advising a number of authorities that have sought to bring forward the launch of some of their business-critical procurements. Please let us know if you would be interested in considering the benefits this may offer. We would be delighted to support you by providing insights from our experience including discussing how bringing forward launch dates may be achieved from a practical perspective.