Yesterday (22 April 2024) the government announced the “go live” date for the Procurement Act 2023 – 28 October 2024 - and provided a further guidance document on transitional implementation of the Act.
The guidance confirms that:
- procurements “commenced” on or after 28 October 2024 will be regulated by the Act only;
- procurements that were “commenced” before 28 October 2024 will continue to be regulated by the Public Contracts Regulations 2015 (PCR 2015) (or by the parallel current utilities, concessions or defence regulations as appropriate) until all contracts awarded under them have ceased to exist; this includes any modifications to these contracts;
- in the case of frameworks or DPS, these will continue to be regulated under the PCR 2015 (or equivalent) until the final call-off contract has expired (even where the framework or DPS itself has previously terminated);
- for these purposes, “commenced” will usually mean the publication of a Contract Notice/VEAT notice/below-threshold advertisement; but
- if the procurement is using Regulation 32 PCR 2015 to make a direct award without notice/competition, the “commencement” of the process for these purposes will be the date that the authority contacts a supplier with the intention of making a direct Regulation 32 award.
The guidance also confirms that:
- the publication of a Prior Information Notice (PIN) under the PCR 2015 will not amount to “commencement” (unless it was used as a call for competition – which it has not been possible to do since 26th March 2023);
- if the authority has already included a prospective contract in a non-statutory pipeline notice, this too will not amount to “commencement” under the old regime; the authority will still need to include all these contracts in the “statutory” pipeline notice required to be published under the Act by 26 May 2025;
- the Act requires authorities who have conducted preliminary market engagement (PME) to publish a PME notice providing details of this; there is however an option not to do so and instead in the tender notice to provide reasons why the authority did not opt to publish a PME notice. The guidance helpfully confirms that where a PIN was used under the “old” regime to invite PME, it will not be necessary to duplicate this by publishing a PME notice under the Act; instead the authority may state in the tender notice under the Act that no PME notice was published because a PIN was already available; and
- the central digital platform will not have the capacity to publish Payments Compliance Notices from 28 October 2024, therefore authorities should continue to publish these notices under Regulation 113 PCR 2015 until section 69 (payments compliance notices) of the Act comes into force.
Some transitional brain teasers!
It is 1 November 2024. I am making a change to a contract which I signed in the summer. Do I need to publish a Contract Change notice under the Act?
No, you don’t. This contract was procured before 28 October 2024 and so remains regulated by the PCR 2015. (Depending on the kind of modification you are making, however, you may still need to publish a modification notice under Regulation 72(1)(b) or (c) of the PCR 2015).
It is 1 December 2024. I am awarding a call-off contract under a framework which only has six months left to run. Should I follow the rules on frameworks in the Act?
No, you need to use Regulation 33 PCR 2015 – assuming that this framework will have been procured before 28 October 2024, all contracts called off under it, even after that date, remain regulated by the PCR 2015.
It is 1 February 2025. We have spent many months negotiating with a single supplier who is the only supplier in the market who can provide us with a specialist product due to technical reasons; we are satisfied that we can award directly to them under the procurement rules. We first wrote to them with this intention on 25 October 2024. Presumably given it is now February 2025, we need to follow the Act rather than the PCR 2015?
No, you don’t; you need to use Regulation 32 PCR 2015. The date you first approach the supplier with the intention to direct award falls before 28th October 2024, meaning that this contract is regulated by the old regime.
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