AUTUMN 2025 DIGITAL - Flipbook - Page 15
LEGAL & LAW
Bradley
Martin
A new procurement regime
for UK public bodies has been
met with mixed feelings so far.
Bradley Martin, partner at UK
and Ireland law 昀椀rm Browne
Jacobson, examines the
patterns emerging so far.
When the Procurement Act
2023 came into force on 24
February this year, it represented
the most substantial overhaul of
public procurement rules in the
UK for over a decade.
The legislation was designed
to revolutionise the way public
bodies acquire goods, services
and works, promising enhanced
value for taxpayers and greater
public bene昀椀t through improved
昀氀exibility and openness.
We recently conducted a
survey among our public sector
clients and their suppliers to
capture early experiences and
observations following the
Act’s implementation. The
昀椀ndings indicate a mixed bag
in terms of adopting the new
regime and experimenting with
opportunities it presents.
Sticking with what’s known
A substantial number of clients
reported limited engagement
with the new Act thus far,
suggesting a measured approach
to adoption. In the lead-up to 24
February, there was a marked
surge in procurements being
initiated under the old rules.
Transitional provisions
mean these exercises remain
governed by the previous
framework – notably the Public
Contracts Regulations 2015
(PCR). Given that this regime has
been in place for 10 years, it’s
unsurprising that organisations
feel more at ease with its
requirements.
Some contracting authorities
have shown understandable
wariness about becoming early
adopters of the Act or juggling
Early reflections on the
Procurement Act 2023’s
first nine months
procurements under two
separate regulatory frameworks.
The research revealed instances
of organisations extending
existing contracts that were
awarded before the new rules
took effect.
Additionally, numerous
respondents indicated they’ve
been utilising frameworks
established under the PCR to
commission works and services
since the Act’s introduction.
The survey also highlighted
varying degrees of readiness
for the legislative changes.
While some respondents
had proactively revised
their templates and internal
procedures ahead of
implementation, others
acknowledged they have yet to
undertake any modi昀椀cations.
Both contracting authorities
and suppliers are being urged to
take full advantage of available
resources and to integrate the
Act into their processes and
governance frameworks.
Hesitation around new
possibilities
Among bodies that have run
procurements under the new
Act, a recurring pattern has been
to con昀椀gure the competitive
昀氀exible procedure in ways that
echo familiar processes, such
as modelling it on the PCR’s
competitive dialogue procedure.
The competitive 昀氀exible
procedure gives contracting
authorities the power to
customise procurement
processes according to their
particular requirements and
market-recommended best
practice. Adopting this change to
craft bespoke approaches might
start with modest variations or
innovations.
Likewise, respondents were
cautious about establishing
open frameworks or dynamic
markets – both novel features
introduced by the Act. There
was a prevailing view that open
frameworks might introduce
additional risk that outweighs
any potential bene昀椀ts.
Positive developments
Notwithstanding natural caution
about fully utilising the Act’s
昀氀exibilities and innovations,
many organisations view the
increased 昀氀exibility favourably.
The light touch regime was
highlighted as providing
contracting authorities with
considerably greater 昀氀exibility.
Other respondents
commented positively on
enhanced transparency and
accountability, especially
concerning contract
management after awards have
been made.
There’s a widespread belief
that while contract management
provisions will place additional
administrative demands on
contracting authorities, they
ought to deliver improved
supplier performance and better
value for the public purse.
Areas of concern
Certain aspects of the Act
have proved more problematic.
Pipeline notices were frequently
cited by respondents as
challenging.
Initial understanding
suggested these notices would
be published once a year,
containing a list of all contracts
worth £2m or more that a
contracting authority anticipated
procuring over the subsequent
18 months.
However, subsequent
guidance clari昀椀ed that separate
notices were required for each
individual procurement. This
triggered a rush to publish
individual notices before the 26
May deadline, with many notices
consequently lacking adequate
detail or meaningful information.
Some organisations have
encountered problems with
the Central Digital Platform’s
functionality, while there are
broader worries about the
additional administrative burden
imposed by the Act’s notice
and contract management
requirements on already
stretched teams.
There has also been
some hesitance surrounding
preliminary market engagement
(PME). While not compulsory,
the Cabinet Of昀椀ce strongly
recommends that contracting
authorities employ PME to
gauge market views on their
procurement plans.
Contracting authorities
should ensure their procurement
schedules allow for PME, which
frequently proves valuable for
early discussions with suppliers
about proposed contract
approaches, key performance
indicators and structures for
competitive 昀氀exible procedures.
Looking ahead
The most keenly anticipated
development will be the results
from the 昀椀rst legal challenges
brought under the Act. It’s
expected these will centre on
assessment summaries, section
12 obligations or direct contract
awards.
Additionally, there’s
considerable interest in the
results of the Cabinet Of昀椀ce’s
consultation on proposed further
amendments to the Act, which
concluded on 5 September.
The consultation proposals
encompass additional support
for small and medium-sized
enterprises and measures to
ensure public procurement more
explicitly contributes to creating
jobs, opportunities or skills.
There’s also anticipation around
gaining clearer insight into the
future role of the Procurement
Review Unit.
GOVERNMENT AND PUBLIC SECTOR JOURNAL AUTUMN 2025
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