With the Procurement Act 2023 (PA23) now firmly in force contracting authorities are launching new procurements under the refreshed regulatory landscape. One of the key aspects of PA23 is improved transparency measures and reducing bureaucratic barriers. New record keeping obligations reflect both of these Government priorities. With that in mind, what should contracting authorities be aware of about record-keeping requirements under the PA23?
The new record-keeping obligations
Section 98 of the PA23 requires contracting authorities to keep such records as the authority considers sufficient to explain a material decision made for the purpose of awarding or entering into a public contract.
The section then goes on to elaborate that a "material decision" is any decision where a contracting authority is required to publish or provide a notice, document or other information in relation to the decision (for the purposes of transparency) or to make the decision. For example, the decision to exclude a supplier, the assessment of tenders and award decisions.
The above is by no means an exhaustive list, and contracting authorities should spend some time now thinking about how best to address the section 98 requirements.
Section 98 also requires contracting authorities to keep records of any communication between the authority and a supplier that is made in relation to the award or entry into a public contract before the contract is entered into. This includes documents such as notices, tender submissions, assessment summaries and clarifications.
Contracting authorities will need to keep these records for a period of three years from contract award date. However, obligations around record keeping in other legislation (for example, under the Companies Act 2006) might require authorities to keep records for longer – and these requirements take precedence.
Changes from regulation 84 PCR
Contracting authorities will undoubtedly already be familiar with regulation 84 of the Public Contract Regulations 2015 (PCR) which required contracting authorities to keep a comprehensive written record with key information about the progress of a procurement. The key change under the new legislation is that the PA23 does not contain this level of prescriptive detail and it is for contracting authorities to decide whether a decision is a material decision for the purposes of record keeping. However, we expect in most cases the decisions listed at regulation 84 will in most cases fall within the broad "material decision" requirement under subsection 1, or the recording obligations under subsection 3.
Steps to ensure compliance
To ensure compliance under section 98 we recommend that contracting authorities establish and maintain a dedicated "section 98" report as they go through their procurement procedures. Contracting authorities are already familiar with the regulation 84 report so should be right at home with record keeping – although they will need to make sure to incorporate PA23 updates into their old report templates to ensure they capture all material decisions! By doing this, you will stay on top of all key decisions made for your own governance procedures and ensure section 98 compliance.
Please do get in touch with one of the procurement team who will be happy to discuss this (and all things PA23 related!) further.
