The Procurement Act 2023: A snapshot for bidders

Welcome to the sixth episode of our Global Projects & Construction Podcast series. With the Procurement Act 2023 currently now expected to go live in February 2025 (a 4 month delay to the original October 2024 go-live date), Procurement Partner David Hansom and Legal Director Hannah Chapelhow discuss what changes we may see as a result of the new act, how this will affect Public Sector Procurement and in particular how will this impact bidders.

The episode begins with a review of the immediate focus areas for suppliers, including upskilling bid teams, and registration on the new digital platform. Hansom and Chapelhow then explore the updated exclusion regime, changes to the bidding process, and transparency around KPIs, before concluding with a look at the new remedies’ regime and round-up of how suppliers can best prepare for the changes.

For suppliers affected by the new procurement regime, Chapelhow says the immediate focus should be on upskilling bid teams as well as the wider business. While government guidance has been written for contracting authorities rather than bidders, she says it is nonetheless “a good place to start.” Suppliers should also prepare to provide a wide range of business information on the central platform when that goes live.

Chapelhow describes exclusions as “one of the first hurdles suppliers are going to have to navigate,” and Hansom outlines several new elements including “a US federal-style debarment register”, with new mandatory exclusion grounds, discretionary grounds, and rights where there is a national security concern. Authorities will also have greater scope to look for evidence of self-cleaning where exclusions do take place.

On the topic of bidding, Chapelhow explains “the overriding theme is around flexibility,” however it is unclear how contracting authorities will choose to interpret both the law and the associated guidance. She predicts “three camps” ranging from the more cautious to the more commercial, and some who strike a balance between the two. Her advice to suppliers is “read your ITT very carefully,” while “engaging with your authority clients to encourage flexibilities be used in the right way.”

Another big shift relates to transparency around contract awards, performance and KPIs, which means for contracts over £5m authorities must publish at least three KPIs, followed by a performance assessment every 12 months during the contract term. Chapelhow advises suppliers “to be clear as to what they're signing up to and have bid teams trained to determine what information is commercially sensitive.”

The discussion also touches on changes to the remedy’s regime, including a reduction in the timescale to challenge a tender decision to just eight working days, from 30 previously.  This, Hansom believes, “is not long enough, to go through internal governance, make the decision to challenge, instruct lawyers, and issue a claim,” and may impact the volume of protective claims being made.

Rounding up with an overview of what suppliers can do to prepare for the new regime, Hansom advises suppliers to look out for pipeline notices, which must now be published by any public body which proposes to spend more than £100m under public contracts. He also suggests consulting legal specialists to clarify any areas of concern and ensure conflicts of interest are dealt with effectively. Finally, have “an appropriate resource within your bid team or corporate governance department to track potential grounds of exclusion and the self-cleaning regime.”