Following the enactment of the Procurement Act 2023 in October last year, secondary legislation has now been published that makes more detailed provision for aspects of the new regime. The draft Procurement Regulations 2024 set out in detail the content requirements for the numerous notices required by the Procurement Act 2023 – see our infographic on the lifecycle of procurement notices – and the services that fall within its "light touch" regime.
The expanded notice regime is a lynchpin for the government's delivery of its transparency ambition, which was set out in the Cabinet Office's "Transforming public procurement" green paper in 2020, and will cover the whole procurement lifecycle. The draft regulations, which follow two consultations and the government's response on implementing the new legislation, are expected to come into force as part of the new regime later this year.
Under the new regime, authorities can expect to publish more notices than they do currently (with some previously voluntary notices becoming mandatory), while suppliers will have more opportunities to gain insight on procurement activity with the increase in points for publishing information about their awards. Both authorities and suppliers will need to keep an eye on which parts of the information about the procurement and resulting contract may require redaction for commercial sensitivity.
Central digital platform
The regulations are not the end of the story in relation to transparency, however; in time, a central digital platform will be created to house all data and information shared through the notices. The aim is to expand the types of information available to report on, improve usability of the data and allow the information to be more easily accessible.
There will eventually be five registers published on the platform: the notices, a register of commercial tools (setting out live frameworks and dynamic markets), the performance register, the prompt payment register, and the debarment list.
The central platform will also provide a single location for suppliers to upload core information usually required to be provided in every tender, such as contact details, information about economic and financial standing, connected persons and in relation to the exclusion grounds.
Notices: an infographic
The Procurement Act 2023 introduces new notices and the regulations confirm the detailed information that these must include. Authorities will have primary responsibility for publishing these notices.
Our infographic on procurement notices sets out the notices required at each stage of a procurement and throughout the life of the resulting contract. This gives an overview of their purpose and requirements as well as circumstances where they are mandatory or optional or in some cases not required.
Light touch regime scope
The light touch regime applies a slimmed down set of rules to certain types of service contacts; generally, those of lower interest to cross-border competition. For example, when awarding light touch contracts, contracting authorities have greater freedom to select any contractor from a framework without the need for an additional competitive selection process.
The government consulted on the scope of services which fall within the light touch regime and the regulations and accompanying consultation response now confirm the revised remit. Many categories of services previously included in the light touch regime under the Public Contracts Regulations 2015 are carried forward, but there are also some new services in this category including gynaecological and rehabilitation hospital services, e-learning services, museum services, nuclear safety services, and travel agency, tour operator and tourist assistance services. A full list of light touch services under the new regime can be found in schedule 1 of the Procurement Regulations.
Osborne Clarke comment
The new regulations do not yet provide final confirmation of the transitional arrangements that will apply to the Procurement Act 2023; however, the expectation is that the current regime will continue to apply to all procurements commenced prior to the primary legislation coming into force. Only procurement commenced under the Procurement Act 2023 will be subject to the new regime and this is also expected to be the case for modification of any contracts procured prior to it coming into force.
In due course, there will be both additional regulations and further guidance setting out the transitional arrangements. In line with the "go live" for the new legislation, the regulations are currently expected to come into force in October 2024. Contracting authorities and suppliers can expect guidance on additional areas to be published prior to this to provide further clarity.
Please visit our "Navigating the changes under the Procurement Act" microsite for our insights on the new regime.
Daisy Barrow, a Solicitor Apprentice with Osborne Clarke, contributed to this Insight.
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