Understanding the Procurement Act 2023

The public procurement regime under the Procurement Act (PA) 2023 came into force on 24 February 2025. Any procurements that start on or after this date will be subject to the new regime. Although many concepts and requirements of the PA 2023 mimic previous procurement rules and regulations, there are significant changes requiring suppliers to adjust their procedures, templates, and operations to ensure compliance.

What are the key differences brought in by the Procurement Act 2023?

The new legislation created the following changes:

• Several procurement rules, including the Public Contracts Regulations 2015, Utilities Contract Regulations 2016, the Concession Contracts Regulations 2016, and the Defence and Security Public Contracts Regulations 2011, have been revoked and consolidated under the PA 2023. This means utilities, concessions, and defence contracts, as well as ordinary contracts for works, goods, and services, are controlled by the same rules, with some sector-specific provisions where appropriate.
• The language used in the PA 2023 has moved away from terms expressed in European Union (EU) procurement directives.
• The PA 2023 focuses on contract management, including the requirement for contracting authorities to report on performance and set objectives for suppliers. These objectives must be regarded when the authority makes contract management decisions and awards contracts.
• The number of procurement procedures has been reduced to three, namely: direct award, competitive tendering procedure (comprising either an open procedure or a competitive, flexible procedure) or an award under an existing framework.
• Ministers must be told if a contracting authority excludes a supplier on either a mandatory or discretionary basis. The supplier may be investigated and barred from the procurement process for a maximum of five years. The grounds for excluding suppliers have widened and include circumstances where there is evidence a supplier has breached modern slavery legislation, committed environmental offences, breached previous contracts, or been cited for poor performance.
• Although the number of remedies available to suppliers remains the same, the mandatory standstill period preventing an authority entering into or modifying a contract is reduced to eight days and does not start to run until a Contract Award Notice has been published.

What are ‘procurement objectives’?

When carrying out a covered procurement (above threshold) contracting authorities must consider the following procurement objectives:

• Delivering value for money.
• Maximising public benefit.
• Information sharing to allow suppliers to understand the authority’s procurement policies and decisions.
• Acting, and being seen to act, with integrity.

Under the PA 2023, procurement captures the entire lifecycle of the process, so these principles must be considered at all stages, including termination. If they are not, a supplier may have grounds to bring court proceedings against the authority.

Suppliers must be treated the same unless:

• There are distinctions between suppliers that justify treating each one differently, and
• The contracting authority takes reasonable steps to ensure no supplier is put at a disadvantage.

Proportionality is not included as an objective; however, it is mentioned elsewhere in the PA 2023, so the Courts may apply this to any disputes regarding differentiating treatment or unfair advantage. Suppliers will have to wait and see whether this occurs as cases under the new legislation proceed through the Courts.

In addition, there are provisions in the PA 2023 which make it incumbent on contracting authorities to ‘have regard’ to any barriers to SMEs participating in the procurement process, such as tight deadlines and overly complex tendering processes, and to consider whether such obstacles can be eliminated or mitigated.

What remedies are available to suppliers under the Procurement Act 2023?

Remedies are set out in Part 9 of the PA 2023. All claims made by suppliers must be brought in the High Court and the remedies available and relevant time limits are similar to the previous procurement regime. 

In the case of a supplier bringing court proceedings and notifying the contracting authority of that fact, an automatic suspension preventing the supplier from entering into or modifying a contract comes into effect. Suppliers must now bring proceedings within the standstill period (see above). Previously, proceedings only needed to be brought before entry into the contract.

Under section 102 of the PA 2023, the Court can make one or more of the following interim orders:

(a) an order lifting or modifying the restriction in section 101(1) (automatic suspension);

(b) an order extending the restriction or imposing a similar restriction;

(c) an order suspending the effect of any decision made or action taken by the contracting authority in carrying out the procurement;

(d) an order suspending the procurement or any part of it;

(e) an order suspending the entry into or performance of a contract;

(f) an order suspending the making of a modification of a contract or performance of a contract as modified.

However, before an interim order can be made, the Court must consider:

(a) the public interest in, among other things—

(i) upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law;

(ii) avoiding delay in the supply of the goods, services or works provided for in the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services);

(b) the interests of suppliers, including whether damages are an adequate remedy for the claimant;

(c) any other matters that the court considers appropriate.

With regards to time limits, a supplier must bring a claim within 30 days of discovering the breach made by the contracting authority that gives rise to a claim. In the case of proceedings related to set aside and non-publication of a Contract Details Notice, the supplier has 30 days from the day they knew or ought to have known of the circumstances giving rise to a claim or six months from the date the contract was agreed or modified.

Wrapping up

This article provides a mere snapshot of the intricacies of public procurement rules and regulations. If you have any questions about the PA 2023 or want to bring a claim against a contracting authority, contact an experienced Commercial Law Solicitor who will advise you and protect your best interests.

To instruct one of our Commercial Law Solicitors, please fill in our contact form or email us at [email protected]