Work smarter, not harder: support with getting ready for the Procurement Act 2023

This article was updated on 12 September 2024 to reflect the revised date of the Procurement Act 2023 coming into force – 24 February 2025. This was previously 28 October 2024. 

The new Procurement Act 2023, coming into force in February, has been hailed as a chance to reform the procurement regime in the UK and provide a slicker, more efficient process.

This new legislation offers far greater flexibility and a huge opportunity for better procurement, but the impact of the scale of the change should not be underestimated. It will require a range of new processes and information systems and a transformation of ways of working across the public sector, leaving many understandably concerned by the administrative burden this will place on their teams.

Alison Walton, head of procurement, discusses the impact on the public sector.

Administrative burden

Alison says: “The number of notices the public sector will be required to publish is increasing and is set to become something of a burden if they are not adequately prepared. In total, we have counted upwards of 15 notices spanning the planning, procurement and contract award stages for every public contract and given that public sector procurement resources are already stretched, processes and procedures will need to be put in place to mitigate the impact of these new requirements sooner rather than later.”

Greater flexibility

It’s not all doom and gloom. The Act introduces a competitive flexible procedure, giving the public sector the opportunity to tailor their procurement processes to meet their specific needs and circumstances. Alison says: “It’s hoped that this flexibility will encourage innovation and offer better value for money, especially since the Act makes provisions for engaging with SMEs, who are often more cost-effective and innovative.”

Awarding contracts

The public sector will now be required to award contracts to the supplier offering the "most advantageous tender" (MAT), as opposed to the "most economically advantageous tender" (MEAT) that is currently in place. Alison says: “Removing the word ‘economically’ doesn’t mean that price is no longer important; it will still be relevant when awarding contracts. But there’s now an emphasis on a broader range of factors which, taken as a whole, deliver value for money.”

KPIs and reporting

It will be mandatory to include at least three KPIs in all contracts valued at more than £5m. The contracting authority must then publish a Contract Performance Notice at least once every 12 months for each of those contracts, rating the supplier’s performance against the KPIs.

Alison says: “This requirement will place a burden on already stretched procurement teams to maintain their involvement in contracts throughout their lifetime and not simply at the initial procurement stages. This will inevitably need more resources and will likely involve much more interaction between contract managers and procurement teams throughout a contract’s term.”

If the KPIs are not drafted in a fair and balanced manner, then this could lead to pushback from bidders during the clarification stage of the procurement process. It could also lead to an increase in non-compliant bids if the acceptance of contract terms is a pass/ fail requirement.

Procurement challenges

This leads us to the question of challenges. The market is more aware of its rights to challenge an unfair process than ever before. Stricter requirements in the process mean more risk for authorities. Alison says: “A well-crafted procurement process is the best prevention tool against challenges. The thought of managing a procurement project from start to finish can be a daunting one, particularly taking into account all the new changes, but there is help out there. We offer a managed procurement process to local authorities, education providers, and other public sector organisations, providing support with everything from advice on strategy right through to evaluation.”

Madeleine Hope, chief financial officer at Bishop Chadwick Catholic Education Trust, engaged Muckle to manage its procurement of a replacement management information system and says: “This was a high-risk project for the Trust, and it was vital to work with a law firm that not only had experience in managing high-risk procurements but could also lead on the entire project as we did not have the in-house resource to deliver this ourselves. Muckle exceeded our expectations, acting as an extension of our team and managing every aspect of the procurement process from start to finish.

“They not only provided legal advice but real practical solutions, which was invaluable in the seamless and compliant execution of the project on a tight timescale.”

Alison says: “Not only is managing a procurement process time-consuming, but it can also be stressful with the public sector seeing an increasing number of procurement challenges and litigation.

“We have the added advantage of being able to combine our procurement specialisms, both contentious and non-contentious, with legal expertise, so we can anticipate issues before they become challenges.”

Our procurement team acts for a range of public sector clients, including local authorities, education establishments and housing associations. We on a number of frameworks, including NEPO, Tees Valley Combined Authority (TVCA), North West Legal Consortium (NWLC) and the national academy trust framework Pagabo.

To find out more and talk through your needs, contact Alison Walton on 0191 211 7850 or email [email protected]