Anyone else surprised it has been almost a year since the Procurement Act 2023 (PA2023) came into force? It feels like only yesterday we were preparing advice to clients for competitive flexible procedures yet to commence and notices soon to be published.
So how much change has the PA2023 actually brought? Has it been the positive push and domestication of public procurement that the Green Paper heralded? In this article we reflect on some observations arising from the first year of the PA2023.
The Green Paper emphasised the swift and timely resolution of procurement disputes. Challenges under the PA2023 have commenced - although numerous only on an informal level, but so far few have progressed beyond that. Why? Most likely because of the cost and timing issues with bringing a claim, plus the fact that the meatiest competitive flexible procedures (with some of the more lucrative contracts) are only just coming to their close. Optimistically one might also say it is because contracting authorities are complying with the rules - whether or not this is as a result of a renewed focus on procurement compliance as a result of the introduction of the new regime itself or behaviours driven by the noticing regime and related transparency.
However, it is clear that the PA2023 and procurement reform discussions have publicised the benefits of well-constructed and digitally supported procurement processes. Organisations are benefitting from updated policies and procedures that accurately reflect the full scope of the PA2023 (including simplified and localised below threshold obligations). They are also investing in their staff, training and upskilling them to make the most of the new regime. This is most noticeable in the contract management space where authorities, encouraged by the new obligations around KPIs and performance notices, are seeing the benefit of taking more time to plan and test KPIs with the market. Whilst it is only an initial step towards better management of contracts, it is hoped that as more contracts are procured under the PA2023, more will be done by contracting authorities to invest in this essential stage of the commercial lifecycle: ensuring operational teams understand how to manage, apply and enforce a contract.
Another desired aim for the procurement reforms was for the improvement in commercial outcomes for a contracting authority. The PA2023 dropped the rigidity of individual procedures (e.g. the restricted procedure, innovation partnership etc) and instead introduced the competitive flexible procedure. But has this changed competition design? We have seen creative approaches adopted from the outset, but for day-to-day contracts, contracting authorities are sticking to procedures that reflect those seen under the previous regime. It isn’t that they aren’t willing to push boundaries, but more that there is no obvious need to introduce less conventional stages. Nonetheless, the PA2023 has emphasised a commercial and nimble approach in this area of competition design: most of the processes being adopted could have been used under the previous regime, but reinforcement, guidance and training have led to contracting authorities being less nervous about, for example, holding clarification meetings following submission of tenders. Authorities are also less nervous about the use of interim tenders to down-select bidders. This is certainly a positive and we hope that as time goes on there will be a greater desire amongst contracting authorities to push their approaches further (albeit within the framework permitted under the PA2023).
inally, since they pervade all aspects of a regulated procurement, it seems only sensible to touch on the “procurement objectives” set out in section 12. As legal professionals we often found ourselves harping back to equal treatment and transparency under Regulation 18 of the Public Contracts Regulations 2015 if a client was contemplating the right step/ decision to make. Has section 12 filled this gap? We would submit that it has. The flexibility created by the PA2023 allows greater scope for contracting authority discretion in a process. Should it lot a procurement? Should it exclude a bidder where the invitation to tender gives a right but not an obligation? It is the objectives in section 12 and whether they are absolute or on a “have regard to” basis that will guide the conclusion. In a legal jurisdiction where public law concepts of reasonableness and procedural fairness have been guiding public bodies for decades, it is likely that the objectives in section 12 of the PA2023 will be the primary tools used by the courts to domesticate the public procurement regime.
As 2026 progresses we look forward to the increase in contracting authorities' confidence in applying and using the PA2023, alongside clear judicial guidance which the TCC will inevitably start to gift the sector.
