The second part of the public consultation on the draft secondary legislation (The Procurement Act 2023 (Miscellaneous Provisions) Regulations 2024) ('the Draft Regulations') to implement the Procurement Bill ('the Bill') ran from 17 July 2023 - 25 August 2023. This second part of the consultation focused on transparency provisions and the notices that contracting authorities will need to use under the Procurement Act ('the Act'). It also included information on the proposed approach to transitional arrangements for procurements already underway, and on other legislation that will need to be amended in order for the full provisions of the Act to take effect.
In this briefing, we look at the introduction of notices which authorities will need to use under the Act and the new central digital platform for the publication of the notices and documentation. We also look at the proposed approach to transitional arrangements and when the new regime will apply to procurements.
This notice will contain advance information on planned procurements for contracts valued over £2 million. This requirement will only cover contracting authorities that reasonably expect to have more than £100 million third party spend in any financial year.
The notice must be published within 56 days of the first day of the relevant financial year and will include such details as the nature of what is to be procured, when it is expected to be advertised, and when it is thought that the delivery will commence. Contracting authorities are not held to the information in the notice which could change over time and is intended to be updated to improve fidelity.
Planned Procurement Notice
Where the contracting authority wishes to do so, they can choose to complete a Planned Procurement Notice to reduce the tendering period (minimum ten days). All contracting authorities are able to publish a planned procurement notice in relation to any type of procurement for a public contract covered by the Bill.
Preliminary Market Engagement Notice
This notice can be used by contracting authorities if they choose to carry out pre-market engagement and/or notify the market this engagement has taken place. Publication of the preliminary market engagement notice should take place prior to publishing a tender notice. If contracting authorities choose to conduct pre-market engagement without using the preliminary market engagement notice, the tender notice for the opportunity must state why no notice was issued.
This notice is used to commence a competitive procurement. A tender notice will act as an invitation to submit a tender for the contract under the open procedure and could act as an invitation to tender or an invitation for suppliers to submit a request to participate under the competitive flexible procedure. In either case, it must be published on the central digital platform. The tender notice is not applicable in the case of direct award, where the transparency notice plays a similar role.
Utilities Dynamic Market and Dynamic Market Notice
The Bill replaces dynamic purchasing and qualification systems with a single new commercial purchasing tool called a Dynamic Market ('DM'). DMs can be used and established by contracting authorities, including utilities; and utilities can also establish and use a Utilities Dynamic Market ('UDM') for the purpose of the award of utility contracts. DMs and UDMs are generally very similar with slight differences such as the basis of charging fees.
A contracting authority must publish a transparency notice before awarding a contract under direct award provisions. The function of the transparency notice is to inform stakeholders that a contracting authority intends to direct award a contract and ensure that there is transparency relating to this decision.
There is no set time period between the publication of the transparency notice and the award of the contract, however, government guidance on the benefits of publishing the transparency notice will be published as early as possible.
Procurement Termination Notice
The procurement termination notice informs the market that a contracting authority has decided not to proceed with a procurement. It is only necessary to publish this notice if a tender notice or transparency notice has been published for the procurement.
The assessment summary has the same function as what is currently known as the standstill letter. The Bill requires that an assessment summary must be provided to any supplier that submitted an assessed tender in relation to a competitive procurement under clause 19 of the Bill.
Contract Award Notice
This notice is to confirm the contracting authority’s intention to award a contract and commences the standstill period. This notice can also inform the market if a contracting authority decides not to proceed with one or more lots in a procurement process after the closure of the tendering period.
Contract Details Notice
Once a contract has been awarded, this notice provides information on the contract, including details of the supplier. In accordance with the Bill (clause 53) this notice must be published within 30 days of the contract being signed (120 days if the contract is a light touch contract). If the total value of the awarded contract is over £5m, a copy of the contract will need to be published within 90 days (180 days if a light touch regime contract) of being entered into.
Payments Compliance Notice
The Bill requires contracting authorities to publish specified information every six months, detailing how quickly they have paid their suppliers. This notice does not apply to private utilities or contracts awarded by schools, nor does it apply to concession contracts.
Contract Performance Notice
For contracts valued over £5 million, a contracting authority will usually be required to set at least three KPIs in respect of the contract in the contract details notice and in the contract performance notice; the supplier’s performance is measured and monitored using these KPIs. This notice records both the performance of the supplier against the published KPIs and information relating to any serious breach of contract. It is not a requirement for both KPI performance and a serious breach of contract to be published on one notice; this information can be published over multiple contract performance notices. KPIs are not required for frameworks, private utilities contracts, concession contracts and light touch contracts.
Contract Change Notice
Before modifying a public contract valued over £5 million, a contracting authority must publish a contract change notice ('CCN'). A CCN can cover multiple contracts that all stem from the same procurement process.
Contract Termination Notice
This notice is to confirm when a contract has ended, either through expiry or other means.
Central Digital Platform
The Cabinet Office is developing a digital platform for the publication of public procurement notices and documentation. The digital platform will enable notices and documents to be accessible by electronic means, free of charge and through a single point of access.
In order to ensure that published data is correctly attributed to specific parties and processes, all contracting authorities, suppliers and procurement procedures (and their individual notices) will have a unique identifier on the central platform.
The Bill contains a power (clause 124) to make a transitional, transitory or saving provision for the commencement of the Act. The fundamental principle is that procurements which ‘start’ after the effective date of the new legislation must be conducted by reference to the new regime only, whilst those which have been conducted, or have started, under the ‘old regime’ should continue to rely on those regulations. Procurements that have been started under the old regime will continue to the end of the contracting lifecycle for that process. Additional principles have also been set that take into consideration the differences between old and new regimes.
The consultation sets out the position on other legislation that will need to be amended in order for the full provisions of the Bill to take effect. For example, a number of amendments will be needed so that references to the Public Contracts Regulations in other legislation refer instead to the new Procurement Act.
What happens next?
The Cabinet Office is currently considering the responses from the consultations and we await the published outcome. The Draft Regulations reflect the proposed wording of the Act, subject to any amendments following the outcome of the consultation.