The Procurement Act 2023 received Royal Assent on 26 October 2023: the culmination of a long and exhilarating journey through post-Brexit aspiration, policy and practicalities.
The debates in both the Houses of Lords and Commons highlighted the breadth of relevance procurement has in all areas of daily life: who would have thought that when the UK Government promised to "transform public procurement" way back in December 2020, the remaining outstanding amendment to the Act would concern organ harvesting?!
From ensuring security through our national supply-chain, enabling SME access to the UK public purse, disqualifying bad actors in our bidding community, guilty of child trafficking, slavery and poor performance, promoting social value objectives and wrapping it all in new procurement objectives: the Procurement Act attempts to do it all.
Nevertheless, some simple questions remain:
Is this it?
At 128 sections, 11 schedules and at 125 pages long, the Procurement Act 2023 cuts a slim dash. We were promised a "bonfire of red tape and regulation" and the Act seems to deliver. However: this is not "it". We are due a significant amount of additional legislation, policy statements and guidance – all of which will need to be identified, read and digested. The legislative landscape moving forward will comprise numerous and diverse sources: we know that secondary legislation will be due early 2024, a new National Procurement Policy Statement is likely by October 2024 and the Cabinet Office has promised a significant amount of guidance on all areas of the Procurement Act, including suggested examples of certain elements of (e.g.) the Competitive Flexible Procedure.
The Cabinet Office may have achieved a cull of over 350 individual regulations and a combination of the different EU-derived Regulations into one Procurement Act: but what remains will not necessarily be simpler (in substance and form) than what we had before: the procurement practitioner needs to be aware of the diversity of information forthcoming and ensure it is aware of all new content being published by Government moving forwards.
What next?
The Cabinet Office has rightly recognised that public procurement will not improve unless there is a cultural change and capability upskilling to complement the new regime. To that end, there is now a "transition period", during which public sector procurers and bidders to the public sector need to get to grips with the new regime and the flexibilities that exist thereunder.
During this period, the Cabinet Office will be running a significant Learning and Development programme of knowledge drops, self-guided E-learning, deep-dives of detailed training and encouraging and supporting Communities of Practice: long-term groups of procurement practitioners focussing on specific topics and approaches with a view to share knowledge and help each other to upskill. These are all invaluable from a client-side view: allowing procurers to navigate the new rules boldly, sharing best practice and preventing a "business as usual" approach to procurement practice.
Nevertheless, bidders are left on their own: the Cabinet Office Learning and Development offering does not extend to those seeking to bid to the public purse. Those seeking to understand how their clients' behaviours, processes and decisions may be changing over the next year will need to seek their own advice. Given that every public sector bid process depends on contracting authorities and bidders: will the absence of support for bidders be a missed opportunity/create avoidable problems moving forward?
What should I do?
As suggested above, this will depend on whether you are a client or a bidder. However, our first recommendation is relevant to either entity:
Read the Procurement Act 2023!
- It is a relatively short document and there is no substitute for going back to first principles to understand your role/requirements in the procurement process.
Clients: in addition to reading the legislation, it is never too early to start looking at how the procurement reforms will affect your practice:
- Audit your procurement capacity and requirements: do you have what you need in terms of procurement support and expertise in your organisation? If not: how will you ensure that your organisation is best served for its procurement needs – use frameworks? Collaborate with other organisations? Appoint in-house expert(s)? Make sure you connect with your Single Point of Contact to avail yourself of all of the Cabinet Office Learning and Development offering.
- Consider what updates might be needed to your procurement strategy, policy and procedures: Could they be simplified – particularly around thresholds, procedures and qualification requirements? Without doubt they will need to be updated – but how can you improve them in the process
- Consider how you might use the new flexibilities under the Competitive Flexible Procedure: what procurement tools do you like using and are useful for your organisation and bidding community – consider and consult on how these could be used to your benefit going forward.
- Update your suite of tender documents: the Procurement Act 2023 adopts significant stylistic and linguistic differences – the vocabulary and cross-references in your tender documents and administrative documents etc. will need to change. Start considering what amendments may look like.
- Make it easy for yourself: Trowers will be producing flow-charts for the transparency notice requirements and potential procedures for the Competitive Flexible Procedure, alongside our updated Essential Guide to the Procurement Act – make sure you take advantage of the information and guidance that will be published in due course and embed it into your day-to-day practices and tools.
Bidders: there may well be a bit of a waiting game, whilst you wait for your clients to undertake and progress the above updating processes, but there are steps you should be taking now:
- Obtain practical and accessible training for your bid teams and account managers: make sure it is sector relevant and has insight into potential routes your clients may be adopting;
- Engage with your clients now! Encourage them to update their strategies, policies and procedures (including their competitive flexible procedure and tools) in a way that is sensitive to the needs of the market, that takes advantage of the flexibilities but that also increase efficiency and value for money throughout their supply-chain.
Concluding thoughts
We are now in exciting times: the Procurement Act 2023 and its journey thus far has highlighted how important procurement is to the health and wealth of the country.
Nevertheless, transformation of procurement practice will only be secured in the event that clients and bidders alike grasp the opportunity of re-looking and re-casting current procurement policy and practice and recognising where it can be improved … and then upskilling and developing to ensure that improvement is secured.
There can be no option to adopt a cautious or "business as usual" approach: we have seen through national events (Grenfell, Carillion and poor quality and safety outcomes across the construction sector) the cost of poor procurement – the Procurement Act 2023 prompts us to recognise the need to transform current practice and approach and will hopefully give us the tools to permanently improve our strategic and day-to-day procurement activities.
