The Procurement Act (2023) aims to revolutionise public procurement.
Working in collaboration with TLT, learn how it may impact you and get ahead with our resources covering its implications for public sector procurement and the construction industry.
Essential insight into how contracting authorities will award the contracts after the implementation of the Act.
This video sets out the changes in the procedures available to contracting authorities to procure their construction contracts, including staged awards and the rules on engaging with suppliers during this process. It should be watched by buyers, estimators, and surveyors, but also due to the content on staged awards, by contract/project managers.
This video sets out the rules that contracting authorities must apply when procuring works contracts below £5.37 million (the point at which they become public contracts). For many contracting authorities, below-threshold procurements amount to most of their procurements, so for SMEs, these rules are significant. This video should be watched by estimators (and potentially surveyors, contract/project managers, and senior management).
This video sets out the new rules around frameworks, open frameworks, and dynamic markets. Being on one of these contracts/arrangements can have a significant impact on accessing opportunities in the public sector; this session sets out what they are and how they work in practice. It should be watched by estimators (and potentially surveyors, contract/project managers, and senior management).
Finding and taking part in public procurement procedures.
This video should be watched by anyone involved in bidding for public contracts as it sets out the new objectives under the Act and how these can be built into a tender response. It is suitable for estimators, buyers, and surveyors.
This video sets out and works through the various notices that will be required to be published during the life of a procurement and the management of the contract. It should be watched by those bidding for public contracts as well as those involved in contract management, including estimators, surveyors, and contract/project managers.
This video sets out where to find opportunities, what to look out for in the tender documentation, and what happens to the information that you submit during the life of the procurement process. It is primarily designed for estimators (and potentially for buyers, surveyors, and contract/project managers), but may also be of interest to senior managers regarding the information that will be shared on the new Central Digital Platform.
This video explains what market engagement can be used for and how to get involved. Due to the range of topics that can be discussed at these events, the video should be watched by those bidding for and pricing tenders and those who will ultimately be involved in managing those contracts, as this is an opportunity to ensure that the contract management expectations (KPIs and LADs) are realistic and achievable. This includes estimators, buyers, surveyors, and contract/project managers.
Understanding the new rules around awards, challenges and contract management.
This video sets out the information to be included in an assessment summary (the replacement for a standstill letter), along with timescales and what you can do if you think there is information missing. It should be watched by estimators and senior management.
This video sets out the grounds for challenge, the challenge process (including timescales), and the available remedies. It includes some pertinent cases that help explain those grounds in practical terms. It should be watched by the bidding team (estimators) and senior management.
This video sets out the changes to the rules on modifying public contracts, including the increased obligation to publish contract change notices in “most” circumstances and that the notices need to be published “before” the change is implemented. It is targeted at contract managers, (and potentially those bidding for contracts), as contracting authorities will need support from suppliers to manage these new requirements in an efficient and practical manner.
This video sets out the new rules on contract performance and payments; this includes publishing notices annually for KPIs and following any poor behavior as well as monitoring and reporting on payment behavior. It is targeted at contract managers and senior leaders, (and potentially those bidding for contracts), as the information being put into the public domain could have consequences on future ability to win public contracts.
Other rules you need to know when participating in a public procurement.
This video sets out the rules on using subcontractors to deliver all or parts of the technical requirements; this includes detailing who you are going to use, ensuring they are “suitable,” entering into legally-binding agreements, and how they will support delivery against the contract aims and objectives (for example, KPIs and social value). The recording should be watched by estimators and surveyors, but also due to the ongoing reporting, by contract/project managers.
This video sets out the rules on when a supplier (or a subcontractor) may be excluded from participating in or being awarded a contract. The rules include some new grounds and this, combined with increased information transparency on supplier performance being in the public domain, could have consequences for suppliers. It will be of most interest to those bidding for contracts (to check they are eligible for an award) and may also be of interest to senior managers regarding the consequence of poor performance information being shared on the new Central Digital Platform.
This video sets out what amounts to a conflict of interest and details the new conflict assessments that contracting authorities will need to conduct where there is a perceived, potential, or actual conflict. Suppliers will need to provide contracting authorities with details of all those involved in the procedural design, procurement, and contract management to support the contracting authority in acting with integrity. It should be watched by anyone involved in any stage of a contract’s life cycle, including estimators, buyers, surveyors, contract/project managers, and senior management.
Assessment Methodology
The methodology used by the CA when assessing tenders against the award criteria. For example, what scoring matrices will be used.
Assessment Summary
Letter which is sent to Bidders on completion of the procurement process which summarises the Contracting Authority’s assessment of their bid.
Award Criteria
The criteria set by the CA against which tenders are assessed during a competitive tendering procedure. These criteria must relate to the subject-matter of the contract and must be sufficiently clear, measurable, and specific.
Below Threshold Contract
Broadly a contract of ‘lower value’ (defined in relation to the thresholds set out in Schedule 1 of PA23) compared to an above threshold/ ‘covered procurement’.
Below Threshold Notice
A mandatory notice where a CA is advertising a notifiable below threshold contract to invite competition.
CA (Contracting Authority)
The public body responsible for awarding contracts.
Central Digital Platform
Where opportunities will be advertised, transparency notices will be published and other information (such as a copy of the contract which is entered into with successful bidders in certain circumstances). The platform also stores Supplier’s basic information plus economic/financial information and will also host the Debarment List.
CFP (Competitive Flexible Procedure)
Means a procurement procedure which is not an ‘Open’ procedure. CA’s have significant flexibility in the way that they design a competitive flexible procedure, which may include multiple stages and interaction/ negotiation with suppliers.
CQs (Clarification Questions)
Questions from suppliers to the authority and vice versa to clarify parts of a tender.
Conditions of Participation
Set of conditions set by the CA as part of a procurement process that require suppliers to demonstrate their legal, financial and technical ability to perform the contract.
Conditions of Tendering
The rules of the procurement process which sets out how the CA will conduct the procurement, including all and any procedural requirements.
Conflict Assessment
An assessment of any actual/potential conflicts of interest identified and steps taken by a CA to mitigate them.
Conflict of Interest
This may be an actual, potential, or perceived conflict and may arise in a procurement context where there is a conflict between the interests of a person acting in relation to a procurement and those of the procurement itself.
Contract Award Notice
A mandatory notice which must be published by a CA when awarding a contract. Triggers the Standstill Period.
Contract Change Notice
A mandatory notice which must be published by a CA when a contract is modified. Exceptions apply.
Contract Details Notice
A mandatory notice which must be published by a CA after a contract is signed, includes details of the KPIs (Min. 3 for public contracts above £5m).
Contract Management
Contract management involves preparing, signing, and managing agreements to ensure both parties meet obligations, as well as reducing risks, and improving efficiency, quality, and value for money and monitoring the supplier’s performance against any stated KPIs.
Poor Performance Notice
Must be published within 30 days of a poor performance event; namely, failing to perform the contract to the CAs satisfaction (this being a holistic test and not just in relation to KPIs) or a breach of contract that has resulted in damages, a partial termination of the contract or a settlement agreement.
Contract Termination Notice
A mandatory notice which must be published by a CA when a contract is terminated. Exceptions exist.
Covered Procurement
Means the award, entry into and management of a public contract.
CPN (Competitive Procedure with Negotiation)
A procurement method under PCR 2015 that includes negotiation with suppliers.
DBT (Department for Business and Trade)
The UK government department for business and trade.
Debarment List
A list if suppliers, set up by Ministers, which identifies whether a Supplier has been excluded from a covered procurement on the basis of a mandatory or discretionary exclusion ground. Inclusion on the list means that the supplier’s past behaviour or circumstances mean that it is not, or may not be, allowed to participate in covered procurements or be awarded public contracts.
Dialogue
A conversation about the procurement with suppliers during the CFP.
Direct Award
When a contract is awarded to supplier without a competition, or where there is a material change to an existing contract.
DM (Dynamic Market(s))
A list of qualified suppliers (i.e. suppliers who have met the ‘conditions for membership’ of the dynamic market) who are eligible to participate in future procurements; with suppliers only eligible to participate in procurements for the parts (categories) for which they have qualified.
Dynamic Market Notice
Mandatory notice which must be published by a CA before establishing a dynamic market.
Ethical Wall Agreement
A process for managing conflicts of interests, which may (for example) limit disclosure of information by certain individuals within an organisation to other individuals from the same organisation.
Excludable Supplier
Where a discretionary exclusion ground applies, and the CA believes the circumstances giving rise of it are continuing/likely to occur again, such that the supplier may be excluded from the procurement process. Or the Supplier is on the Debarment List on the basis that it has been excluded from a covered procurement pursuant to one of the discretionary exclusion grounds.
Excluded Supplier
Where a mandatory exclusion ground applies, and the CA believes the circumstances giving rise of it are continuing/likely to occur again, such that the supplier must be excluded from the procurement process. Or the Supplier is on the Debarment List on the basis that it has been excluded from a covered procurement pursuant to one of the mandatory exclusion grounds.
Exclusion Regime
The exclusions regime enables, and where appropriate requires, the exclusion of suppliers where they pose particular risks to public procurement.
Exempted Contract
Exempted contracts are not required to be procured in line with the provisions of PA23. The exemptions ensure that contracting authorities have the freedom to let such arrangement as most appropriate, where the rules in the Act would otherwise be unsuitable.
Framework
A contract between one or more CA(s) and one or more suppliers that provides for the future award of call-off contracts by a CA to the supplier or suppliers.
ITT (Invitation to Tender)
A request for suppliers to submit bids for a contract.
Judicial Review
A procedure by which a court can review an administrative action by a public body.
KPI (Key Performance Indicator)
A factor or measure against which a supplier’s performance of a contract can be assessed during the life cycle of the contract.
LAD (Liquidated and Ascertained Damages)
Damages claim against a contractor for project delays.
Light Touch Contracts
Light touch contracts are contracts for legal services and administrative and government services, along with certain social, health, education and catering/ hotel services and are subject to more flexible procurement rules. In many of these cases, the service is delivered directly to individuals or groups of people and therefore warrant special treatment and greater flexibility.
Lot(s)
These are a way to split up a larger single procurement into smaller ‘parts’, which are procured under separate contracts. One supplier can be successful in more than one lot and so be awarded more than one contract.
Mandatory Standstill Period
A requirement to run a standstill period unless an exception applies.
MAT (Most Advantageous Tender)
Or the ‘winning’ tender. Refers to the tender that both satisfies the contracting authority’s requirements and best satisfies the award criteria by reference to the assessment methodology. It is important to note that although the word “Economically” has been m from the acronym, CAs still need to evaluate “price, costs or value for money in all the circumstances” as this has been included within the definition of the “subject matter of the contract”.
MEAT (Most Economically Advantageous Tender)
Refers to how CAs identified the preferred tenderer under the PCR2015
MoD (Ministry of Defence)
The UK government department for defence.
NDA (Non-Disclosure Agreement)
A legally binding contract that establishes a confidential relationship between two parties and can specify confidential information that cannot be shared.
NPPS (National Procurement Policy Statement)
Government policy referenced in the PA2023 that sets procurement priorities and to which, all CAs “must have regard”.
Open Framework
An open framework is a scheme of successive frameworks awarded on substantially the same terms over a maximum duration of 8 years.
PA23 (Procurement Act 2023)
New procurement Act replacing the old regulations.
Payment Compliance Notice
Must be published by CAs every 6 months detailing compliance with the 30-day payment rules. Exceptions apply.
PCR (Public Contract Regulations 2015)
Rules for public contracts, now replaced by the PA2023.
PCSA (Pre-construction Services Agreement)
A contract with a contractor for design before the main building contract starts.
Pipeline Notice
Mandatory notice which must be published by a CA if they anticipate spend over £100m through procurement activities.
Planned Procurement Notice
Discretionary notice which a CA can choose to publish. Provides slightly more specific detail of an upcoming opportunity and can be used to shorten the tender period.
Preliminary Market Engagement
The process which allows CAs to engage with the market ahead of a procurement exercise for the purpose of developing requirements and the procurement approach, identifying potential suppliers and building capacity among suppliers regarding the contract being awarded (amongst others).
Preliminary Market Engagement Notice
Mandatory notice which must be published by a CA if preliminary market engagement is undertaken and there are no reasons for not publishing.
Procurement Regulations 2024
Rules for public contracts, which work alongside PA23.
Procurement Review Unit (PRU)
Replaces the Public Procurement Review Service (PPRS) and will be overseeing compliance to the new legislation and making recommendations if non-compliance occurs.
Procurement Termination Notice
Mandatory notice which must be published by a CA when terminating a procurement process; regardless of if this is for poor performance or the satisfactory completion of a contract. Private utilities are an exception.
Sensitive Commercial Information
Information which constitutes a trade secret, or which would be likely to prejudice the commercial interests of any person if it were published or disclosed.
Set Aside Order
An order, if ordered by the Court, that means the contract in question is void (i.e. the new term for a ‘declaration of ineffectiveness’).
SME(s) (Small and Medium-sized Enterprises)
Any organisation that has fewer than 250 employees and a turnover of less than €50 million or a balance sheet total less than €43 million. They often drive innovation and greater productivity.
Social Value
In relation to public procurement, social value is the wider benefit gained by a local community from the procurement and delivery of public contracts and services.
Standstill Period
The standstill period is the period between the contracting authority announcing its intention to enter into a contract (by publishing the contract award notice) and a minimum period of eight working days (although this can be extended). The contracting authority cannot enter into the contract during the standstill period. The standstill period provides an opportunity for suppliers to raise any concerns about, or formally challenge, the award decision before the contract is entered into. It must be at least eight working days beginning with the day on which the contract award notice is published.
Supply Chain Management
The management of all suppliers and subcontractors involved in the delivery of a contract against which performance levels and monitored and potential remedies applied to.
SQ (Standard Questionnaire)
A form used to check if a supplier is suitable for a contract. (Noting that this may have a different name once the PA23 goes live and that it is the point in the process where the Conditions of Participation are tested).
Tender Notice
Mandatory notice which must be published by a CA when undertaking a competitive tendering procedure under PA23.
Transparency Notice
Mandatory notice which must be published by a CA when making a direct award. Exceptions apply.
TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006)
Protects employees' rights when a business or contract is transferred out from or into the CA, or transferred between suppliers delivering public contracts.
Valid / Undisputed Invoice
An invoice is valid if: (i) it is an electronic invoice in the required electronic form; or (ii) it sets out the minimum required information (i.e. customer name, description of goods/services, the sum requested and a unique identification number) and meets any other requirement set out in the contract. 30-day payment terms for CAs apply to these.
VFM (Value for Money)
A core procurement policy requirement, defined as “the best mix of quality and effectiveness for the least outlay over the period of use of the goods or services bought”.
Voluntary Standstill Period
Where the CA is not required to observe a mandatory standstill period. A CA may choose to observe a voluntary standstill period in these circumstances as this can have the effect of removing the remedy of ‘Set Aside’.
Key information to help Construction Main Contractors and Subcontractors understand how the Procurement Act affects them.
The following public contracting authorities are excluded from the Procurement Act (2023): the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.
A connected person may be an individual or entity associated with a supplier applying to a tender. Additional criteria for connected persons can be found here.
Connected persons links to its introduction of the Debarment List as part of the Procurement Act (2023), which gives Contracting Authorities grounds to exclude certain suppliers from tenders, if an offence has been committed as per Schedule 6, Part 1.
The Procurement Act (2023) comes into effect from 24th February 2025, pushed back from its planned date of 28th October 2024.
Key Performance Indicators, or KPIs, as defined within the Procurement Act are a factor or measure against a supplier’s performance of a contract that can then be assessed during the lifecycle of the contract.
These are set and published by the Contracting Authority for the supplier entering a contract: to ensure a contract can be fulfilled by the supplier, the Contracting Authority must assess the supplier’s performance against the KPIs set, followed by publishing this information in relation to the assessment.
Where public contracts exceed £5million, at least 3 KPIs must be set in respect of the contract. This may include health and safety performance, customer satisfaction rates and quality of delivery.
In terms of public authority exclusions from the Procurement Act, the Security Service, the Secret Intelligence Service and the Government Communications Headquarters will be exempt from the Procurement Act.
For supplier exemptions, the Procurement Act sees the introduction of a published Debarment List. This record will minimise supplier-related risk to public procurement and encourage appropriate standards of behaviour for public tenders. Such exemptions are also linked to any connected persons, where a supplier can become exempt due to past activities or improper behaviour, competition law infringements and national security, for example.
Further details for grounds for debarment/exclusion can be found here.
A standstill period refers to the ‘waiting period’ between a contract being awarded and then entering a contract, between the contracting authority and the supplier.
Section 51 of the Procurement Act highlights an eight-working day standstill period – ten calendar days under previous legislation – beginning with the day the contract award notice was published. It provides suppliers with the opportunity to raise any concerns, or formally challenge, the award decision before a formal contract is entered. Where exemptions apply, a voluntary standstill period may be emplaced.
Broadly, those curious about the Procurement Act can:
Yes. The Procurement Act will replace PCR 2015 (Public Contract Regulations 2015), along with Utilities Contracts Regulations 2016; Concessions Contracts Regulations 2016; and Defence and Security Public Contracts Regulations 2011.
Yes. The Procurement Bill received Royal Assent in 2023, for it to then become the Procurement Act (2023), effective from 24th February 2025.
No. Existing contracts will continue to be managed under the current regime. Contracts from 24th February 2025 will come under the Procurement Act.
Nothing. Live procurements will continue under the current regime. Procurements from 24th February 2025 will come under the Procurement Act.
This content is intended for general guidance and represents our understanding of the relevant law and practice as at September 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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