Kuldip Dhanoya is partner and head of public procurement at national law firm TLT
The Procurement Act 2023 takes effect in the UK (with limited application to Scotland) from today (24 February), following four years of development triggered by the Green Paper: Transforming Public Procurement in December 2020. It reflects the UK government’s post-Brexit aim to create a simpler, more adaptable and accessible procurement system. The act emphasises transparency, accountability, flexibility and greater access for SMEs and the voluntary sector.
“Monitoring and participating in early engagement opportunities will be a key part of bidding processes”
For the public sector, the introduction of the act has triggered an intensive period of preparation involving reviewing internal procurement practices, early planning and development of commercial opportunities, procedures, policies and new guidance. Extensive training at all levels and ensuring compatibility with the new Central Digital Platform has been critical. For suppliers, business preparation has provoked a lively debate around how greater transparency and flexibility requirements can be used to prepare for procurements and deliver innovative solutions.
Going forward, buyers will be required to issue more notices, including pipeline, pre-procurement, and early market engagement notices, providing early notification of bidding opportunities. Regular monitoring of the Central Digital Platform and setting up internal alerts for pre-procurement activities of target buyers will be critical.
The act limits procurement procedures to either an open procedure or a competitive flexible procedure. The open procedure mirrors the current rules’ most simplistic procedure, while the competitive flexible procedure allows buyers discretion in designing a bespoke procurement processes.
New ‘open’ frameworks, (an alternative to traditional ‘closed’ supplier frameworks we are used to working with) will permit additional suppliers to join midway through the framework’s life. Dynamic purchasing systems will be replaced with ‘dynamic markets’, which can deliver complex requirements, unlike their traditional, off-the shelf predecessors.
Given these new flexibilities, buyers are expected to increasingly rely on early market engagement with suppliers to test the parameters of their procurements. Monitoring and participating in early engagement opportunities will be a key part of bidding processes, particularly if suppliers wish to help shape the procurement processes.
Debarment list
Maintaining a debarment list of excluded suppliers is a new concept. Buyers will check lead supplier details and specific tiers of subcontractors, group companies and other “connected persons” against the list at the start of each procurement. This provides an opportunity to regularly audit your supply chain and check their status against the debarment list before proposing your commercial solution.
The act places greater emphasis on delivery public policy objectives rather than proposing the cheapest price in tenders. The latest National Procurement Policy Statement (which the public sector is required to “have regard to” when conducting their procurements) requires buyers to consider objectives like driving economic growth and delivering social and economic value. There is also a greater emphasis on promoting access for SMEs. Measuring supplier performance against these themes may become a standard area of bid evaluation or form the basis of contractual KPIs.
The Procurement Act 2023 marks a significant step towards a more transparent, flexible and inclusive procurement system in the UK. For public sector buyers, this shift necessitates thorough preparation and adaptation to the new requirements, while suppliers must stay proactive in monitoring opportunities and engaging early in the procurement process.
The introduction of new procedures, such as the competitive flexible procedure and dynamic markets, provides avenues for innovation and tailored procurement approaches. By fostering greater access for SMEs and emphasising public policy objectives, the act aims to drive economic growth and social value. Both buyers and suppliers can leverage these changes to deliver more effective and innovative procurement solutions. As the act comes into force, staying informed and adaptable will be key to navigating this evolving landscape and maximising the benefits it offers.
