Mastering the Procurement Act 2023: A Practical Guide for Buyers and Suppliers

Brexit signalled a new beginning for the UK. The country took the opportunity to reassess some critical regulations and legislations and reworked them to represent its own best interests and not necessarily those of the EU. The Procurement Act 2023 is one of the biggest transformations to emerge post-Brexit, influenced by the changes in eu procurement directives. and while the new regime isn’t entirely different from the old, several key goals or priorities have been identified.

For example, one of the main goals was to simplify procurement processes, which was achieved by reducing the number of procurement procedures used. Increasing transparency was another primary goal, opening up the procurement processes to public scrutiny and ensuring greater accountability from contracting authorities. 

Innovation is another major new priority. The UK wants to be an industry leader across the board and that means it needs to step up its innovation game. The intention is to increase collaboration among suppliers and encourage partnerships between suppliers and public sector organisations. 

It will also help bring more suppliers into the fold, which is partly why SMEs are being welcomed with open arms. Not only can they help with innovative ideas, but they also grow the economy and can give social value and net-zero goals a boost. 

This post will explore some of the significant changes the Procurement Act 2023 brought about and how contracting authorities and suppliers can succeed under the new regime. 

What’s Changing Under the Procurement Act 2023?

Here’s a summary of the four key changes affecting contracting authorities and suppliers as procurement transformation marches onwards.

1) Fewer Public Procurement Procedures

Under the old procurement law- the Public Contracts Regulations 2015 (PCR 2015) – Under the old procurement law- the Public Contracts Regulations 2015 (PCR 2015) – there were six routes to procurement, particularly relevant for central government bodies:

1. Open procedure
2. Restricted procedure
3. Competitive dialogue
4. Negotiated procedure
5. Negotiated procedure without Prior Publication (direct award)
6. Innovation partnerships

There were also framework agreements and dynamic purchasing systems (DPS), and every procedure had its own processes. 

Under the Procurement Act 2023, Under the Procurement Act 2023, there are three public procurement procedures, including open and restricted procedures:

1. Open procedure: A single-stage process with no limit to the number of tender responses.
2. Competitive flexible procedure: Contracting authorities pretty much have full licence to carry out the process as they deem appropriate. They can:
   1. Limit tender responses
   2. Divvy up contracts into lots (and limit suppliers to a certain number of lots)
   3. Disallow suppliers who didn’t respond to the initial round of tendering or failed to qualify from the initial round. 
   4. Allow contract award criteria to be refined following early engagement with suppliers.
3. Direct award: Only allowed in special circumstances, for example, an emergency where animal, human, and plant life are at risk and procurement is of the essence.

(With open framework agreements that enable suppliers to join during mandatory “open windows.”)

2) New Principles/Priorities

The focus has shifted from straightforward economic benefits to a more holistic approach that also considers:

• Value for money: A more expensive bid may provide more overall value and be the better choice.
• Public benefit: Social value, which is now mandatory, requires initiatives that benefit local communities either environmentally, economically, or socially.
• Equal treatment: This works on at least two levels. It applies to SMEs that can deliver just as much, if not more, value and public benefit than larger organisations. It also applies to equal treatment in the workforce where no one is discriminated against based on education, gender, ethnicity, or disability. 
• Integrity: Suppliers and public bodies must conduct themselves with integrity, which requires wider considerations than the bottom line, for example, choosing a more expensive manufacturer because a cheap one relies on modern slavery.

3) A Central Digital Platform for Contract Notices

The new regime requires public authorities to publish a lot more tender notices than before, and they must be published on the new Central Digital Platform. The 17 notices start in the pre-procurement process and carry on throughout to the end of the contract. The platform is designed to help contracting authorities and suppliers find their perfect match via the contracts finder while maintaining utmost transparency.

Note: Not every contract requires all 17 notices. Many depend on the value of the contract and its purpose. For example:

Pipeline notices alert suppliers to projects and contract opportunities they can expect from a contracting authority over the following 12 or 18 months. However, only contracting authorities that spend over £100 million in the financial year are required to publish pipeline notices.

4) Mandatory Supplier Debarment List

There are stricter rules regarding supplier exclusion and debarment from public procurement activities. Debarred suppliers can be excluded for up to five years, so it’s very important to keep your nose clean. 

Exclusions typically pertain to a specific tender, based on an assessment by a contracting authority.

A Minister of the Crown has the power to place suppliers on a central debarment list, preventing them from participating in all covered government procurements. The list is publicly available on GOV.UK. 

Mandatory exclusion applies mainly to cartel-related activity, including bid rigging and price fixing. Discretionary exclusion applies to cartel and non-cartel activity, including anti-competitive award decisions and abuse of positions of power.

It’s essential to keep a close eye on supply chains because suppliers can be excluded if they are connected to or associated with guilty parties, including directors, subsidiary companies, and sub-contractors. 

Suppliers who self-clean can re-enter public procurement. Self-cleaning includes paying compensation to injured parties, removing staff guilty of exclusionary practices, and implementing procurement policies to prevent activities recurring.

What It Means for Public Sector Buyers

Government departments have to maintain the following:

• Flexibility in their procurement processes, adapting them to specific circumstances and requirements. It helps to keep customisable templates for the various contract notices and feedback mechanisms.
• Logging and recording all interactions and communication with suppliers and other stakeholders. This clear audit trail ensures transparency in the process, which meets the requirements of the Procurement Act 2023. It also explains the reasoning behind decisions and actions taken.
• Changes to the way they evaluate bids, from MEAT (Most Economically Advantageous Tender) to MAT (Most Advantageous Tender). That means a change in mindset from best price to greatest overall value, which includes price, social value, and value for money.
• Pre-market engagement opportunities with suppliers to help set realistic expectations and refine the details of contracts in question. And, ensuring all pre-market events are compliant with the Act’s procurement rules.

Delta eSourcing for buyers

Delta eSourcing’s platform has a range of tools that help buyers maintain regulatory compliance with utilities contracts regulations. while simplifying the procurement process, for example:

• Templates and procurement documents have built-in compliance workflows and are aligned with the Act’s procurement policies.
• Audit trails are also built into the system.
• Dynamic Purchasing Systems (DPS) and framework agreements are designed to meet the changes brought about by the new regime. 
• Pre- and post-award publishing requirements, like pre-market engagement and mandatory feedback.
• Access to resources, like onboarding guides, expert support team, and customer webinars.

What It Means for Suppliers

Suppliers also have to adapt to the new procurement regime by addressing the needs of local authorities :

• Ensuring they understand the new notices (all 17 of them), timelines, and contract award procedures.
• Staying competitive and compliant, for example, providing sufficient social value and maximising the public benefit in local communities – and further afield if possible. 

Delta eSourcing for Suppliers

Delta eSourcing’s platform supports suppliers as well as contracting authorities. It provides:

• Access to live tenders from public sector buyers across the UK.
• Tools, like customisable templates, for suppliers to request clarification on contract details and submit procurement documents, like financial statements. 
• An SME-friendly user interface and access to a supplier support team to guide small businesses through some of the more complex processes in public sector procurement. 
• Downloadable resources, like tips for responding to the various contract notices.

What’s Next?

Failing to prepare is preparing to fail. Contracting authorities and suppliers can prepare themselves for the new regime by partnering with Delta as they navigate the changing procurement landscape. 

Start with a discovery call or book a compliance demo to find out how our expertise in public sector procurement can work for you.