On 24 February 2025, the provisions of the Procurement Act 2023 (the “Act”) will come into force for all procurements commenced on or after this date across the UK.

In this briefing we consider a few areas that contracting authorities and suppliers should be aware of as the go-live date of the new Act approaches.

Updates to Existing Procurement Documents

In the lead up to the go-live of the Act many organisations have been reviewing and updating their documents to make sure that these are consistent with the new regime, and in certain circumstances take advantage of the additional flexibilities.

Changes in order to reflect the new regime, include the following:

• Terminology (e.g. “tender notice” replaces “contract notice”, “competitive flexible procedure” rather than “restricted”, “competitive dialogue” or “competitive procedure with negotiation”);
• Mandatory and Discretionary Exclusion Grounds (these are now referred to as “excluded” and “excludable” suppliers);
• Ensuring appropriate questions are asked in respect of subcontracting;
• Including at least three Key Performance Indicators;
• Reserving the right to refine award criterion; and
• Updates to contract terms to reflect implied payment terms and implied termination grounds.

Central Digital Platform

The Act provides for a new central digital platform to facilitate the publishing of required notices and documents in accordance with the new regime. The central digital platform will be an enhancement of the existing Find a Tender service and its aim is to make it easier to find and bid for contracts, and for buyers to meet their transparency commitments under the Act.

The find a tender central digital platform will go-live from 00:01 on 24 February 2025. The central digital platform is available here.

While this is the same web address as the current Find a Tender service, the current Find a Tender service will be unavailable from 5:30pm on Friday 21 February 2025 until 11:59pm on Sunday 23 February 2025 so that relevant updates can be made.

For all entities that are currently registered on Find a Tender they will need to re-register and enter their organisation details again on the new central digital platform.

eTendersNI

In Northern Ireland, many contracting authorities use eTendersNI as the basis for their tendering competitions. Guidance has been issued by eTendersNI in relation to changes to its system due to commence on 24 February 2025.

While the guidance states that the actual changes that will impact suppliers submitting tenders will be minimal it has highlighted four main areas to note:

• Certain tenders published before 24 February 2025 (and secondary competitions) will continue to use the current workflow / functionality;
• Flagging some areas where contracting authorities may make changes to the previous processes based on the new Act including: asking different eligibility questions; competitions having multiple cycles of tender/evaluation; and establishing open frameworks;
• For above threshold tenders, there will be a requirement for suppliers to provide certain identifiers from the new central digital platform, so that eTendersNI can retrieve relevant information from this; and
• The new notice regime and format under the Act will apply for any competitions commenced after 24 February 2025.  

Transitional Arrangements

There have been four commencement orders in relation to the new Act. Generally the position is that procurements that have had a contract notice submitted for publication prior to 24 February 2025 will continue to be governed by the existing regime.

Other circumstances, where the contract (or procurement) will continue to be governed by the existing regime include, where, prior to 24 February 2025:

• the contracting authority has awarded the contract, concluded the framework agreement or established the dynamic purchasing system;
• the contracting authority has contacted an economic operator in order to commence the negotiated procedure without prior publication;
• the contracting authority has published a voluntary transparency notice expressing its intention to enter into a contract (without prior publication of a contract notice); and
• the contracting authority has published information about a contract award opportunity, in relation to a below threshold contract, on Contracts Finder.

Summary

We are on the cusp of a new procurement regime, which, in addition to the practical changes concerning how procurements are carried out, also introduces a number of different legal concepts. It will take time to work through both how these new concepts are applied by contracting authorities and what the scope of the legislation actually requires, which will ultimately fall to the courts to interpret.

In light of the changes and potential uncertainties, many organisations have been seeking to finalise their procurement documents, for their imminent procurement needs, so that these can be issued in advance of 24 February 2025, in order to give some comfort that the existing Public Contracts Regulations 2015 regime, with which they are familiar will continue to apply.

If this is a course that a contracting authority is seeking to pursue it makes sense, in view of the potential downtime in the Find a Tender website, for these competitions to be commenced as soon as possible this week.

If you have any questions in relation to the changes introduced by the Act or the practicalities for commencing and managing procurements please don’t hesitate to get in touch with William Curry, Partner, Corporate Commercial or your usual Arthur Cox contact. We would be happy to help.

Please note that this article sets out a high-level summary of the position and should not be relied upon as legal advice. Entities should seek their own legal advice on the consequences and implications for them.