This article, the latest in our changing landscape series on the Procurement Act 2023, looks at how the law will govern transition to the new procurement regime, and which contracts will be regulated by the current regime and the Procurement Act respectively.
The Procurement Act 2023 (Commencement No 3 and Transitional and Saving Provisions) Regulations 2024 (the Commencement No 3 Regulations), made on 22 May 2024, set out the mechanics of transition from the current public procurement regime to the new regime introduced by the Procurement Act 2023.
The Commencement No 3 Regulations are an important item of legislation on the pathway to the era of the new Procurement Act. This is because they introduce the key legal machinery which determines which procurements, frameworks, direct awards, and contracts (including modifications to contracts) are governed by the existing public procurement regime, and which will be governed by the new Act.
Specifically, the Commencement No 3 Regulations:
- confirm that most of the Act's provisions which have not yet come into force will do so on 28 October 2024;
- set out the saving provisions in respect of contracts awarded (or procurements commenced) before 28 October 2024 under each of the Public Contracts Regulations 2015 (PCR), Utilities Contracts Regulations 2016 (UCR), Concessions Contracts Regulations 2016 (CCR) and Defence and Security Public Contracts Regulations 2011 (DSPCR) – whereby those respective Regulations will continue to apply to those procurements or contracts despite the Act coming into force;
- set out transitional provisions governing particular situations - notably around repeat goods/services and dynamic purchasing systems (DPS). Regulations 5(4) and 8(4), which apply to DPS procured under the Public and Concession Contracts Regulations respectively, introduce a limit on the period of validity of existing DPS – including dates after which the period of validity of a DPS can't be changed (27 October 2025) and on which all existing DPS will expire (27 October 2028).
In essence, the effect of the Commencement No 3 Regulations is that procurements which were commenced, and contracts which were awarded (either directly or through competition), before 28 October 2024 continue to be governed by whichever part of the current procurement regime (PCR, UCR, CCR or DSPCR) applies to the award of the contract in question. This means that the existing regime will continue to regulate the following situations:
- a competitive procurement in which the contract notice (the advertisement) was published before 28 October 2024, but which is still ongoing after that date, continues to be regulated by the existing regime despite the Act being in force from that date. Any subsequent modifications to the resultant contract or framework agreement will also be regulated by the relevant modification rules in the existing regime;
- a competitive procurement advertised via a concession notice, a notice under the UCR, or a below-threshold contract, in each case advertised before 28 October 2024, or a Prior Information Notice (PIN) which was published as a call for competition before 26 May 2023, will also continue to be regulated by the existing regime;
- an intention to award a contract (and a contract awarded) following a Voluntary Ex Ante Transparency (VEAT) notice before 28 October 2024 will be regulated by the existing regime; and
- a contract in relation to which a contracting authority contacted a supplier before 28 October 2024, with a view to making a direct award, will similarly continue to be regulated by the existing regime.
However, where a non-mandatory PIN – that is, one which was used merely to signal a contracting authority's future procurement pipeline or to begin an early market engagement exercise – was published before 28 October 2024, then the PIN will not operate to keep within the existing regime any procurement exercise which might start on or after 28 October 2024, or any direct award made on or after that date. Instead, the Act will cover such situations.
In addition, Regulation 113(7) of the PCR, which requires contracting authorities to publish annual statistical information showing the extent to which they have complied with the requirement to pay suppliers within 30 days of an undisputed invoice, has been changed to align with the Act. As a result, the requirement will become six-monthly from 28 October.
Want to learn more about the key changes under the Public Procurement Act 2023?
Sign up to our mailing list to receive the next insight in this series, as well as further updates from our Public Procurement team. You can also read the previous articles in our Public Procurement Act 2023 changing landscape series here:
- Issue 1: The context of the forthcoming new public procurement regime
- Issue 2: Utilities contracts
- Issue 3: Concession contracts
- Issue 4: Defence and security considerations
- Issue 5: The new routes to market
- Issue 6: Technical specifications
- Issue 7: MAT- the new MEAT
- Issue 8: Exclusion under the Procurement Act 2023
Read the original article on GowlingWLG.com
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