Key guidance notes released in build up to Procurement Act 2023
A comprehensive review of crucial guidance documents for navigating the procurement lifecycle under the new legislation.
As part of the roll out of the new Procurement Act 2023 (the Act), the Cabinet Office is releasing a suite of 38 guidance documents. The guidance is intended to provide technical insights and assist with interpretation and understanding of the new Act. While the guidance is not statutory and thus non-binding, it offers a valuable understanding of the key changes and practical implications of the new provisions.
The guidance documents have been split into the four key stages of a procurement - Plan, Define, Procure and Manage - to reflect the procurement lifecycle.
We have reviewed the guidance and set out 6 key guidance documents below to help you get to grips with the Act.
Transitional and Saving Arrangements - This sets out the transitional arrangements for existing procurements, framework agreements and dynamic purchasing systems, which will generally continue under the Public Contracts Regulations 2015, and guidance for deciding when the Act applies to new procurements. The guidance note also covers notices. For example, payment compliance notices will come into force on the go-live date whereas pipeline notices will not need to be published until April 2025.
Direct Award - Whilst there are some new grounds for direct awards, the main changes relate to the process. This guidance note sets out the process for directly awarding a contract under the Act plus information on the new Transparency Notice and standstill period which will be mandatory for most direct awards.
Light Touch Contracts - The way light touch contracts are treated has changed. Under the Act, the light touch provisions are applied by exception rather than having separate rules. The guidance note provides a helpful overview of the changes and the greater flexibility offered under the Act, including around standstill and modifications to contracts.
Exclusions - The rule on excluding suppliers is one of the most significant areas of reform with the introduction of the debarment list and widened grounds for exclusion. The circumstances in which a supplier or associated person can be excluded and the factors to have regard to are set out in the guidance note together with the process for assessing exclusions.
Assessment Summaries - These are similar to standstill letters in the current regime but there are some key differences. For example, assessment summaries must be provided before the contract award notice is published and unsuccessful bidders will receive assessment summaries for both their tender and the successful bidder. The notes and scoring from the assessment of the tender is expected to be carried across to the assessment summary so it is important for contracting authorities to develop a suitable award criteria and assessment process to ensure the correct information is included, for example the feedback should link back to the specifics in each bidder's tender.
Contract Award Notices and Standstill - The mandatory standstill period is changing under the Act, from 10 calendar days to 8 working days. The guidance note highlights some procedural but important changes, such as the contract award notice triggering the start of the standstill period and confirms that the day on which the contract award notice is sent out is classed as day one of the standstill period.
The guidance documents are being published on a regular basis. At the time of writing, the 'Define' stage and the 'Procure' stage guidance documents are almost complete. We are still waiting for the guidance note on The Publication of Information and the Central Digital Platform, which will provide crucial information for suppliers on how the platform will work and guidance on the practical application of horizontal and vertical arrangements exemptions. You can keep up with the publication of the guidance documents here.
Please note that for contracting authorities and suppliers in Wales, the Welsh Government is publishing its own guidance separately, which can be found here.