Delay to the implementation of the Procurement Act 2023

Whilst the rumour mill has been in overdrive, last week the Government confirmed what we were all expecting in an announcement that the implementation of the Procurement Act 2023 will be delayed for four months from 28 October 2024 until 24 February 2025.

In a statement released by Minister Georgia Gould, it was announced that the delay is being introduced to allow the UK Government to update the National Procurement Policy Statement (“NPPS”) with a new NPPS which “drives delivery of the Government’s missions”. The current NPPS was described as not meeting the “challenge of applying the full potential of public procurement to deliver value for money, economic growth, and social value”.

This focus on the NPPS could indicate that the new Labour Government will seek to implement a more ‘top down’ approach to procurement objectives than the previous Government, although the duty under the Act is for authorities to ‘have regard’ to the NPPS which, plainly, does not mean that it has to be followed absolutely. Also, the current NPPS refers to consideration of the national priority outcomes alongside additional local priorities and expressly refers to proportionality. It will be interesting to see how the new NPPS is worded and how prescriptive it is.

So what happens now?

Whilst the delay may come as a welcome relief for those contracting authorities and suppliers who need more time to prepare for the new Act, where does this leave those planned procurements under the new Act which were due to take place after 28 October 2024?

Firstly, consideration will be required as to whether you:

1. Continue your planned procurements under the existing regime Public Contract Regulations 2015
2. Review your planned procurements and consider whether the timeline can be adjusted to procure after the new Act comes into effect on 24 February 2025.

We appreciate that this may not be a simple decision for contracting authorities and this delay could result in increased costs or consideration around whether existing contracts can be modified under the current regime to ‘bridge the gap’. You will need to consider which regime best meets your requirements which will entail looking at the differences between them and the pros and cons of each.

Public authorities

This delay allows additional time for public authorities to review and update Contract Procedure Rules in their constitution, as well as their policies, processes and procurement documents.

There is a fundamental shift in the Procurement Act 2023, through transparency requirements that there is a greater focus on contract management. It is not just the documents which require updating but more of a holistic approach and behavioural changes to be taken under the new Act.

We have a team of lawyers who advise both contracting authorities and bidders on all aspects of procurement.