Procurement Act 2023: New draft Procurement Regulations and Guidance published

Following its consultation process the Government has now published the draft Procurement Regulations 2024 implementing certain aspects of the Procurement Act 2023. 

The Procurement Regulations 2024 provide further detail on the information that will need to be contained in the various forms of notices that will need to be published by contracting authorities under the new Act, including pipeline notices, tender notices, transparency notices, contract award notices and contract termination notices. 

The Regulations also set out what will need to be included in “assessment summaries” that are to be sent to the successful and unsuccessful bidders in a procurement process. Although these will still require contracting authorities to provide an unsuccessful bidder with information regarding the successful bidder’s tender, the requirement to provide it with the “relative advantages” of the successful bidder’s tender will no longer apply. This change is likely to be welcomed by contracting authorities as it provides for a less burdensome feedback approach.  

The Regulations set out the categories of services that will be regarded as “light touch” services for the purposes of the Act, and therefore subject to a slightly more relaxed procurement regime. With regard to the Act and the Provider Selection Regime (PSR), the Government has stated that healthcare services will be included in the schedule of light touch services covered by the Act to ensure that those bodies that are not covered by the PSR are regulated under the Act when procuring healthcare services. Guidance will be published on how the Act and the PSR interact.

The Government has also published its first batch of guidance on the new legislation, to help contracting authorities and suppliers to the public sector prepare for the new Act. The first batch of guidance covers the following areas: 

• Contracting Authority definition;
• Covered Procurement definition;
• Valuation of Contracts;
• Mixed Procurement;
• Exempted Contracts; and
• Thresholds.

The guidance on the contracting authority definition provides confirmation of the types of entities that will be subject to the Act. The Act prescribes a test to determine whether an entity is covered or not, which includes a consideration of whether the entity is publicly funded or subject to public authority oversight, and whether it operates on a commercial basis.   

The Government have confirmed that, despite some subtle changes in the wording of the legislation, there is no intention to try and catch new entities, or to exclude entities that are covered by the existing procurement legislation – the aim is for a consistent effect, ensuring a smooth transition from the previous legislation to the new. 

Importantly, the guidance specifically confirms that not for profit housing associations will continue to be subject to the new Act. The Act does not alter the position as it existed in previous legislation that the Regulator of Social Housing exerts sufficient control over housing associations, such that they continue to fall under the ambit of the Act. 

Next steps

The Government intends to publish further batches of guidance over the coming months, with the aim to have the full suite published by the end of June 2024.

The expectation remains that the new legislation will come into force in October 2024. The Government is due to publish further details on the transition arrangements shortly. It is expected that any procurements commenced under the existing regime will continue to be regulated under it, rather than under the new Act.

For more information please contact Partner Kris Kelliher.