Changes in Public Procurement for 2024
Legal news and views
This is a guest blog written by REC business partner: Victoria Trigwell, Legal Director at Brabners LLP
Recruitment businesses who tender for contracts awarded by the public sector will be familiar with the requirements of the current public procurement regime, as embodied in the Public Contracts Regulations 2015 (and its counterparts). These Regulations and related case law are EU derived and therefore, following the UK’s departure from the EU, the UK Government is introducing a new regime with the objectives of:
- creating a simpler and more flexible procurement system;
- opening up public procurement to new entrants such as small businesses and social enterprises; and
- embedding transparency.
The Procurement Act 2023 received Royal Assent on 26 October 2023 and applies in England, Wales and Northern Ireland. If you are not already competing for these contracts, it is worth noting that Government resources report approximately £300 billion is spent on public procurement per year.
What can we expect in 2024?
The new procurement regime is expected to go live in October 2024.
The Government is launching guidance to support the introduction of the Act including knowledge drops (some of which are aimed at suppliers and SMEs) which provide a high-level overview of the changes. These are available on the Government’s website Transforming Public Procurement - GOV.UK (www.gov.uk).
Further secondary legislation will also be introduced this year.
What are the changes under the new procurement regime?
Whilst many of the requirements and obligations of the new procurement regime will look familiar, there are various changes including a change to some of the terminology used.
The Procurement Act consolidates the different regimes currently governing procurement (public contracts, utilities, concessions and defence and security) into one Act and the existing overarching principles have been replaced with new objectives: (i) value for money, (ii) acting with (and being seen to act with) integrity, (iii) maximising public benefit, and (iv) treating suppliers the same (unless otherwise justified).
The existing rules around framework agreements, under which many recruitment businesses supply services, remain, and a new concept of an “open framework” which can be for up to 8 years, has been introduced. Under an open framework, new suppliers can be added to the framework at set times during its lifetime being at least once during the first 3 years of the framework and at least once in the 5 year period from the start of the second framework. This allows existing suppliers to be re-admitted to the framework without their tender having to be reconsidered. However, if there is only a single supplier, the framework is limited to 4 years so it is clear than an open framework requires two or more suppliers.
An important change for suppliers to note is that the current 10-day standstill period has been changed to 8 working days from the day on which a contract award notice is published and automatic suspension will only be available if a claim is brought within that period. There are also changes to the information provided to each tenderer including the successful tenderer before contract award.
The Procurement Act introduces a centralised debarment list managed by a central government Procurement Review Unit which would exclude named suppliers from applying for public contracts for a specified period and this could be as a result of previous poor performance.
What should recruitment businesses do now?
While there is a need to start preparing for the new regime, the existing regime will remain in effect for all public procurements started prior to the new regime going live. We recommend accessing the knowledge drops referred to above and signing up for relevant alerts to keep up-to-date.
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