How changes to the Procurement Act 2023 will impact contracting authorities and suppliers

First, under the current regime, notices focus on the procurement process, including tender notice and contract award. From 24 February, notices are required throughout the full procurement and contract life cycle, changing the number required from four to 14.

The new notices will drive transparency, increasing inclusion and enabling greater scrutiny of procurement decisions and contract performance to maintain high standards.

For suppliers, especially small and medium-sized enterprises, it will mean greater opportunity to engage in upcoming procurements while tracking progress and performance.

Contracting authorities will need to invest time in their procurement resources or engage with managing agents like Pagabo to deliver their frameworks, but the increased administrative burden may be offset by the simpler system aiming to reduce duplication.

“Another key change in the act is the streamlining of procedures under the current regime, reducing them from seven to just two: the open procedure and the new competitive flexible procedure”

Another key change in the act is the streamlining of procedures under the current regime, reducing them from seven to just two: the open procedure and the new competitive flexible procedure. These mechanisms aim to maximise flexibility in procurement solutions and lower barriers to entry.

For suppliers, appropriate training will be required to ensure bid teams are aware of the changes and where to access information. Suppliers are encouraged to engage with contracting authorities to contribute to pre-procurement planning stages and support the design of procurement solutions.

Contracting authorities are encouraged to utilise preliminary market engagement to determine the most appropriate route to market and ensure their internal policies and procedures align with the new mechanisms.

The act also addresses exclusion and debarment, maintaining similar discretionary and mandatory exclusion grounds that target non-compliance and poor performance, though the scope has been widened.

In line with its transparency agenda, the act introduces a debarment register on a central digital platform, along with a mandatory notice system for reporting unsatisfactory performance or contract breaches. Contracting authorities will be required to review and verify applications against the live debarment register and these performance notices for each procurement opportunity.

There is some nervousness around this, but several robust steps will be completed before a contractor is placed on the debarment register. This includes the contracting authority issuing notice to the government on the recommendation to place a contractor on the register and a thorough impartial investigation. An eight-working-day standstill period also applies to any debarment decision.

Suppliers are encouraged to review their supply chains to ensure no organisation poses an unacceptable risk. Policies and procedures should also be subject to a levelling-up exercise to ensure the correct governance is in place.

Procurement performance is a core focus of the act; it formalises and strengthens some of the existing requirements. This includes the issuing of at least three mandated performance measures prior to entering into contracts with an estimated value above £5m, the publishing of payment compliance information, and the social value tender commitments which will form a contractual commitment and key performance indicator.

“Greater access to information may increase scrutiny and the volume of challenges, but this can be looked at both ways. It could potentially increase opportunity or damage chances, depending on what performance data shows”

There will be increased analysis of the entire procurement life cycle, from the performance of frameworks through to individual contracts via the publishing of new notices, and suppliers will be assessed on whether things are performing as intended within bids.

Greater access to information may increase scrutiny and the volume of challenges, but this can be looked at both ways. It could potentially increase opportunity or damage chances, depending on what performance data shows.

The provisions remain broadly the same, but there are some changes to the challenge process, including changing the standstill period to eight working days. Contracting authorities must provide all bidding organisations that have been assessed with feedback in the new assessment summary format, aiding industry betterment by enabling suppliers to improve future bids.

There are two pieces of advice for suppliers. The first is to thoroughly digest all feedback using the assessment summaries provided. The second is to flag confidential information within bids, to ensure it isn’t shared with other bidding parties and reduces competitive edge.

These are just some of the changes to be aware of, and there are various free government resources available online to help prepare for a more successful future in procurement.

If used, the resources should establish greater levels of practical understanding and confidence within procurement teams once the act comes into force.

Shamayne Harris, head of procurement, Pagabo