Key provisions of the Procurement Act 2023 come into force today

Two calendar years after the Procurement Act 2023 received Royal Assent, today (24 February 2025) the bulk of its provisions come into force.

Here are the most immediate points.

For everyone

Existing framework agreements and dynamic purchasing systems continue unaffected. The way call-offs function is exactly the same as it was yesterday. The rules on voluntary standstill are the same and if a bidder brings a court challenge, the automatic suspension that prevents contract signing will come into force so long as the contract has not already been signed. Click for more details on frameworks and transition.

This will ease the way for procurement officers and bidders who won’t need to get to grips with the new regime for the time being for many of their procurements.

For contracting authorities

On all new procurements, contracting authorities need to use the new notices on https://www.gov.uk/find-tender – now officially known as the Central Digital Platform. They need to publish contract award notices, contract details notices, contract termination notices and potentially contract performance notices plus contract modification notices. Here are more details on notice publication. They should also update any internal precedent documents intended to be used in future procurements, to ensure they comply with the Act.

For bidders

Suppliers, if they have not done so, should register on https://www.gov.uk/find-tender. They should also complete all their core information, including information about “exclusion grounds” (convictions, misconduct etc) so that this is ready when they need to submit their first tender. More details on grounds for exclusion are here.

For sub-contractors

Sub-contractors are now required to register on https://www.gov.uk/find-tender and upload their core information in the same way as bidders. The bidder must provide its sub-contractors’ information as part of the tender, giving much more transparency over its supply chain.

Revolution or evolution? That remains to be seen and will largely depend on the approach of contracting authorities and the courts. But here is one prediction:

Poor performance of public contracts is a discretionary ground for exclusion. Additionally, it can lead to suppliers being added to a central list, debarring them from bidding for any future public contracts. This is intended to weed out suppliers who are not fit to supply the public sector or who have a history of poor performance. In our view, this could prove to be one of the most important elements of the Procurement Act. Here’s why:

Debarment effectively closes down a business’s ability to sell to the public sector, either as prime contractor or as a sub-contractor. For some businesses, this could pose an existential threat, threatening insolvency. There is a strong possibility that we will see action in the press and the courts around this before any other element of the Act hits the headlines. A debarred supplier may feel it has no option but to appeal.

Until now, disputes between suppliers and contracting authorities about poor performance have tended to settle without litigation (or at least without reaching trial). There is a significant risk that suppliers refuse to settle and prefer to take their chances in court, as any settlement will have to be disclosed in the course of every public sector bid (as prime supplier or part of the prime supplier’s supply chain); there is also a significant risk of being added to the debarment list. We are already aware of suppliers who are considering their options around settling or not settling historic disputes with contracting authorities. If refusal to settle becomes a by-product of the Act’s exclusion and debarment regime, this will certainly be an undesirable unintended consequence.

Nicola Cullen

Associate

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