With the Procurement Act 2023 (the “Act”) set to come into force in February 2025, the UK Government aims to significantly enhance transparency in public procurement. This article explores the new requirements for publishing notices and the broader principles of transparency that underpin them. These changes will impact both contracting authorities and suppliers, reshaping the procurement landscape by increasing visibility and accountability throughout the procurement process.
Transparency: A Key Government Objective
Transparency has long been a core principle of public procurement, essential for promoting fairness and competition. Under the old Regulations “contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.” These EU principles helped suppliers understand tender requirements, know the basis for decisions and, where necessary, decide whether to challenge those decisions.
New Procurement Objectives
Despite the published Government objectives, the new Act marks a subtle shift. The Act replaces the overarching EU principles of the old Regulations (including transparency) with new procurement objectives. Unlike the government guidance and publicity, it does not explicitly reference transparency. Instead, transparency is embedded throughout the Act by design.
First, contracting authorities are required to publish an extensive array of notices across the entire procurement lifecycle — from planning to contract termination. This will create a clearer picture of public spending, contract performance, and decision-making processes.
Secondly, section 12 of the Act outlines several procurement objectives, including the obligation to share information to allow suppliers and others to understand procurement policies and decisions.
Thirdly, contracting authorities must satisfy themselves that they have published (either in the tender notice or the associated tender documents) information sufficient to allow suppliers to prepare a tender and also details of the goods, services or works required (section 22).
Combined with the duty to act – and be seen to act – with integrity (section 12), our view is that in practice contracting authorities’ general duties of transparency are at least as extensive as under the old Regulations, and these span the entire procurement process. They are designed to provide greater visibility into public sector procurement activities. Nevertheless, it remains to be seen whether the nuances and the shifts in language and detail in practice result in differences of approach by contracting authorities or the courts.
Specific transparency duties
In addition to the section 12 obligation referred to above which requires the contracting authority to share information to allow suppliers to understand procurement policies and decisions, transparency is inherently built into the Act at various stages. The two most important obligations are:
Award criteria: Paragraph 12 of the accompanying guidance makes clear the section 12 duty requires publication of the award criteria as part of the tender documents. This also appears to be implicit in Section 24, which requires the contracting authority to republish or provide again the tender notice and any associated tender documents affected by refinements to the award criteria.
This duty mirrors the duty already developed by case law under the old Regulations. Publication in full of the award criteria and scoring methodology is essential as it enables suppliers to prepare their bids effectively and to scrutinise the award decision to ensure the contracting authority has scored bids correctly.
Award decision and standstill: As set out in our article on Challenging Procurement Decisions, the contracting authority must provide an ‘assessment summary’ to bidders before the award in addition to publishing the contract award notice (section 50(3) of the Act).
The Implementing Regulations (Regulation 32) stipulate the information that must be included in the assessment summary. This includes in particular the full award criteria, weightings and assessment methodology, and how the winner’s and the recipient’s tenders were assessed.
Government guidance on assessment summaries makes clear how extensive the level of detail is likely to be – and it goes beyond what some authorities habitually provide under the old Regulations.
New Procurement Notice Requirements
Key notice requirements include:
- Planned Procurement Notice (Section 15): Similar to the Prior Information Notice or Periodic Indicative Notice under the old Regulations, this optional notice signals a contracting authority’s intent to issue a tender notice.
- Preliminary Market Engagement Notice (Section 17): Contracting authorities must publish this notice before a tender notice if they have held or intend to hold preliminary market engagement.
- Pipeline Notice (Section 93): Required for authorities with an annual spend exceeding £100m, this notice provides a forward-looking view of contracts valued at over £2m expected within the next 18 months.
- Tender Notice (Section 21): Mandatory for competitive tendering procedures, akin to the contract notice or call for competition under the old Regulations.
- Transparency Notice (Section 44): Required before awarding a contract via direct award (ie without competitive tendering), in most cases.
- Contract Award Notice (Section 50): This starts the mandatory standstill period and must be published before a contract is signed, providing information on successful and unsuccessful bidders.
- Contract details notice (Section 53): rather confusingly, this is akin to the old contract award notice and must be published after contract signature.
- Contract publication: contracting authorities must publish contracts valued at more than £5m.
- Contract Performance Information Notice (Section 71): For contracts over £5m, authorities must publish key performance indicators as well as annually publishing details of performance against those KPIs and any information related to breaches or failures by the supplier.
- Contract Change Notice (Section 75): Before modifications above the threshold are made to a public contract, this notice must be issued.
- Contract Termination Notice (Section 80): Required when a contract is terminated or expires.
These notices are to be centrally published, providing accessible and consistent data for the public, suppliers, and contracting authorities to track opportunities, spending, contract performance, and procurement trends.
Broader Impact on Contracting Authorities
The Act brings a significant increase in the number of notices contracting authorities must publish compared to old Regulations. Authorities will need to have robust processes in place to manage the flow of information and ensure compliance with these new requirements. The notices cover every stage of procurement, including sensitive issues such as payments, contract modifications, and supplier performance. They therefore allow the public to track contracts throughout their lifecycle, from planning stage to contract award, any modifications, quality of delivery and expiry/ termination.
For instance, contracting authorities will need to publish a Payments Compliance Notice (Section 69) biannually, detailing their adherence to payment terms within public contracts. Similarly, the Contract Performance Information notice (Section 71) will allow the Government and the public to track supplier performance, including any breaches or failures. Contracting authorities need to ensure they have sufficient resource allocated to meet these obligations.
Implications for Suppliers
The increased transparency embedded in the Act offers both opportunities and challenges for suppliers. On the positive side, the enhanced visibility will provide suppliers with better access to procurement opportunities and detailed information about the contracting authority’s payment performance. This could help suppliers make more informed decisions when bidding and better prepare for potential challenges if procurement processes are perceived as unfair.
However, the downside is that supplier failures will also be more visible. Contracting authorities are required to publish information on breaches of contract or failures to perform (Section 71), including where settlements are reached. This “name and shame” approach could have reputational consequences for suppliers, even in cases where the issues were resolved privately. Additionally, poor performance may lead to a supplier being excluded from bidding for future procurements.
Next Steps: Finalising the Framework
The Implementing Regulations, which will come into force alongside the Act, provide further details on the content and format of the notices. These regulations are vaunted as being transformational, providing greater transparency in public procurement, promoting value for money, and increasing public trust in government spending.
As the February 2025 implementation date approaches, contracting authorities and suppliers alike must prepare for the new requirements, ensuring they have the tools, processes and resources in place to comply with the Act’s transparency obligations. This shift towards greater visibility and accountability in public procurement could reshape how contracts are awarded, managed, and monitored across the UK public sector.
We’re here to help
Our dedicated Procurement Hub offers access to various online resources, where our leading procurement experts keep you updated during the transition to the new regime. In the coming months, we will continue to brief you on the changes expected at each stage of the procurement lifecycle, specifically addressing the new Act and guidance.
Whether you’re a contracting authority or a bidder frequently tendering for regulated contracts, our team of Procurement specialists is here to assist you through the transition.
