From October 2024, the Procurement Act 2023 (the Act) will replace the existing regulations which govern the public procurement regime in England, Wales and Northern Ireland.
The government has an overarching goal of reducing costs by simplifying the procurement regime, and helping bidders to work more collaboratively with public sector procurers. This article covers what you can do to prepare for the new changes to come.
Getting to grips with the new legislation:
As a starting point, suppliers to the public sector should get to grips with the new procurement regime, and there is no substitute for reading the new rules enshrined in the Procurement Act 2023 (as well as those set out in the current draft Regulations around transparency and implementation). There are substantial linguistic and stylistic differences in the Act compared to the current rules, and so it is important to understand the language that will be adopted by your public sector clients. To assist with this exercise, we have produced a Jargon Buster which sets out the key differences in terminology which can be downloaded here: The Procurement Act 2023 – Why we need a jargon buster.
Engage with clients:
The Act aims to provide contracting authorities greater flexibility. In particular, the new competitive flexible procedure replaces the existing multi-stage procedures, allowing contracting authorities to structure their procedures as they see fit. In the lead up to the implementation of the new rules, it will be important to communicate to your contracting authority clients about what works about their current processes, and give constructive feedback on areas to be improved to enable them to update their procedures in a way that is fit for purpose, proportionate and sensitive to the needs of the market.
Review the exclusion grounds:
The Act extends the current discretionary exclusion ground for poor performance to cover scenarios where a supplier has failed to improve performance despite being given an opportunity to do so. This can be linked to the new requirement for contracting authorities to set, assess, and publish a supplier's performance against key performance indicators. Suppliers to the public sector should therefore be mindful that a greater emphasis is likely to be placed on KPIs under public contracts.
Additionally, suppliers may be excluded by virtue of their associated suppliers or subcontractors (any entity relied on to satisfy the conditions of participation) falling within an exclusion ground. Whilst you will be given an opportunity to replace an excluded associated supplier, best practice will be to go through each member of your supply-chain to ensure they do not represent an exclusion risk, and to ensure your sub-contracts include appropriate reporting obligations to enable you to monitor them on an ongoing basis.
Understand the debarment list:
One of the key changes to the exclusion grounds is the introduction of a public debarment list, where excluded and excludable suppliers will be placed following an investigation, and where contracting authorities will be able to clearly identify entities that must or should be excluded. Whilst you will be given notice of an investigation, and have the opportunity to make representations or apply to appeal a decision to be included on the debarment list, the impact of being placed on the list will have serious implications for your business and reputation. Therefore, due diligence should be conducted internally and on supply chains to identify any risks of being placed on the list.
Training:
To fully grasp the changes to come and understand how your strategies and procedures may need to be adapted for the new regime, training should be arranged for your bid teams and account managers. Whilst the Government has produced some training material that is accessible more generally, the L&D offer being developed by the Cabinet Office focusses predominantly on the public sector in order to help contracting authorities get up to speed with the new regime. Suppliers to the public sector will therefore need to ensure that they don't get left behind!
To fully grasp the changes to come and understand how your strategies and procedures may need to be adapted for the new regime, training should be arranged for your bid teams and account managers. Whilst the Government has produced some training material that is accessible more generally, the L&D offer being developed by the Cabinet Office focusses predominantly on the public sector in order to help contracting authorities get up to speed with the new regime. Suppliers to the public sector will therefore need to ensure that they don't get left behind!
We have produced a series of training material and packages for both senior management and procurement teams. For a strategic overview of the Act, we have prepared the following:
- Procurement on Demand videos that cover key aspects of the Act;
- The Essential Guide to the Procurement Act 2023, a guide to the sections of the Act and checklists on actions to be taken;
- Jargon Buster, a translation for new language adopted in the Act; and
- Detailed flowcharts on the key elements of the legislation.
For in-depth and bespoke training based on your organisation's needs and internal expertise, please do get in touch with your usual Trowers' contact or one of the procurement team to discuss how we may be able to help you further.
