Procurement Act 2023 – where are we now? Part 3

We are very much into the countdown of the Procurement Act 2023 (PA23) coming into force, which the Government has announced will “go live” on 28 October 2024. Various guidance documents have been released by the Government and we expect to have a full set by the end of June, with more e-learning modules becoming available.

In our third article we will look at the planning requirements for a Contracting Authority (CA) under the PA23, which is a hot topic for many of our clients. 

Procurement Act 2023 – Planning Requirements

In our view, the overall effect of the duties and transparency requirements under the PA23 is that CAs will need to plan their procurements earlier. Pre-planning is likely to be par for the course as more procurements are commenced under the PA23, given that CAs will be required to serve contract termination notices within 30 days of termination, expiry, and discharge of each contract. 

Before serving a tender notice under s19, CAs must have already complied with a number of duties under the PA23.

A CA has duties under S12 of the PA23 to:

• have regard to the importance of delivering value for money – maximising public benefit,   sharing information to allow suppliers to understand the CAs procurement policies and     decisions, and acting and being seen to act with integrity;

• treat suppliers the same unless a difference between suppliers justifies different treatment. Where different treatment is justified, a CA shall take all reasonable steps to ensure it does not put a supplier at an unfair advantage or disadvantage; and

• have regard to the fact that small and medium-sized enterprises may face particular barriers to participation in a procurement and consider whether such barriers can be removed or reduced.

CAs have a separate duty under s13 of the PA23 to have regard to the National Procurement Policy Statement. There was no such statutory statement in the previous legislation.  A breach of this duty is not actionable under Part 9 of the PA23, but a contracting authority can be held to account for non-compliance in judicial review proceedings or the subject of a procurement investigation under part 10 of the PA23.

A CA has an ongoing duty under s81 during a procurement to take all reasonable steps to identify and keep under review, any conflicts of interest or potential conflicts of interest.

S82 of the PA23 provides that a CA must take all reasonable steps to ensure that a conflict of interest does not put a supplier at an unfair advantage or disadvantage in relation to a procurement.

S83 of the PA23 provides that before publishing a tender notice, a CA must prepare a conflicts assessment in relation to a procurement, although there is no requirement to publish it.

In addition, before the publication of a tender notice, CAs must be satisfied that:

• the Tender Notice or associated tender documents contain information sufficient to allow suppliers to prepare such a tender;

• it contains details of the good services or works required by it;

• in detailing its requirements, a CA must satisfy itself that they are sufficiently clear and specific and do not break the rules on technical specifications in s56 of the PA23; and

• where CAs are subject to a s71 requirement to carry out an assessment of contract performance and to serve a contract performance notice, CA’s will need to have these obligations in mind at the outset and consider KPIs at an early state to ensure that they are clearly drawn, with qualifiable performance related targets.

There is a lot to think about for each individual procurement that a CA will need to undertake. CAs will also need to document their decision-making processes to demonstrate compliance with their duties under the PA23. In our view this very much compels the front loading of the procurement process by CAs. S16 and s17 of the PA23 contains a provision for CAs to publish a preliminary market engagement notice (PME Notice) to invite suppliers to participate in Preliminary Market Engagement (PME). Government guidance indicates that PME may assist a CA to comply with its myriad of duties under the PA23. Therefore, we anticipate that PME will be a useful tool for CAs to utilise to demonstrate compliance with the many duties which we have set out above. Further details of the PME and PME Notice can be found in our article notices to be published under the PA23.