Procurement Act 2023 – Where are we now? Part 4

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 this article we will look at the transitional arrangements that our clients will need to consider when the PA23 comes into force. The rules determine how the changeover from the previous legislation (PCR 2015) to the PA23 will be procured and managed by Contracting Authorities (CA). These arrangements will be set out in the Procurement Act (Commencement No.3 and Transitional and Saving) Regulations 2024. 

Procurement Act 2023 – Transitional provisions

The fundamental point to note is that procurements that commence after the PA23 comes into force must be conducted by reference to the Act only. The PCR 2015 will apply to procurements commenced before the PA23 comes into force.

Where the PCR 2015 applies, it will continue to apply to the management of the contract until it ceases to exist (for whatever reason), for example modifications to the contract will still be made under Reg 72 PCR 2015 and contract management would include only using the notice requirements under the PCR 2015.

A procurement will be considered to have “commenced” for the purpose of the transitional regulations where the below events or “commencement trigger notices” occur before the coming into force of the PA23.

• Where a contract notice has been submitted to be published under the PCR 2015, a VEAT Notice is published, or a below-threshold opportunity has been published.

• Where Reg 32 of the PCR 2015 (negotiated procedure without prior publication) applies, and the CA has signalled its intent to enter into a contract with a supplier without prior publication of a contract notice.

• Where a Prior Information Notice (PIN) has been used as a call for competition prior to 26 May 2023.

It is useful to remember that unless a PIN has been used as a call for competition prior to 26 May 2023, the publication of the PIN, whether used for preliminary market engagement (PME) or not is not one of the commencement trigger notices and the PA23 will apply to the procurement. However, where a PIN has been used for PME, this engagement and the PIN can be relied on as part of a procurement under the PA23 and a preliminary market engagement notice would not have to be published under section 17 of the PA23.

Where a public contract has been included in a non-statutory pipeline notice, before s93 comes into force, it will not amount to “commencement” under the PCR 2015 and therefore, the procurement must be carried out under the PA23.

Where a contract has been awarded through a framework or dynamic purchasing system under the PCR 2015, it will continue to be managed by the PCR 2015 until the contract is terminated (for whatever reason), even if the framework or dynamic purchasing system has already ended.

The requirement for a payments compliance notice will apply to all contracts, not just those awarded under the PA23. CAs are required by s69 to publish payments compliance notices every six months where they have made a payment under a public contract. CAs should continue to publish notices under Reg 113(7) of the PCR 2015 until the payments compliance notice obligation under section 69 of the PA23 comes into force.

The obligations in the PA23 relating to KPIs only apply to contracts awarded under the PA23. CAs are not required to set or publish KPIs for contracts that were awarded under the previous legislation.

The transitional provisions do give contracting authorities some leeway in practice, as depending on the procurement pipeline the use of the PCR 2015 is likely to continue some way past October 2024.