Guidance

Procurement Act 2023 Knowledge Drop for contracting authorities: Collection (HTML)

Published 5 December 2023

Defence and Security

Part 1: Understanding the purpose of the Procurement Act

Accompanying factsheet for defence and security contracts designed to be reviewed alongside the 6 parts of the Procurement Act 2023 Knowledge Drop for contracting authorities.

This factsheet is intended to highlight some of the exemptions or differences to the main rules of the act for defence and security contracts and defence contracting authorities. You should assume that the obligations detailed in the Knowledge Drop series apply unless stated within this factsheet.

Exemptions

The following organisations are exempt from the Procurement Act: the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.

Various defence and security contracts are also fully exempt from the Procurement Act - see schedule 2 of the act for details.

Differences

Defence and security contracts have higher thresholds for the following types of contracts:

1. non-works
2. light touch
3. concessions

Part 2: Pre procurement considerations under the Procurement Act

Exemptions

N/A

Differences

N/A

Part 3: Changes to procurement procedures and routes to market

Exemptions

N/A

Differences

The maximum term for a defence and security framework is eight years (these only allow for the award of defence and security contracts).

Additional grounds for direct award (set out in schedule 5 of the act) apply specifically to certain defence and security contracts.

Part 4: Changes to assessment and award

Exemptions

The requirement to publish a contract award notice does not apply to the award of a contract under a defence and security framework.

Differences

Contracts may be awarded to an excluded supplier where there is “overriding public interest”, including defence and security considerations.

Part 5: Greater contract governance

Exemptions

The requirement to publish a contract change notice (or a copy of the amended contract) does not apply to defence and security contracts.

Differences

Additional grounds under which contract modifications may be made (set out in schedule 8 of the act) apply specifically to certain defence authority contracts.

Part 6: Preparing for the Procurement Act

What additional action do you need to take if you will be procuring defence and security contracts?

Familiarise yourself with the definitions of ‘defence and security contract’, ‘defence authority’ and ‘defence authority contract’ under the act.

https://www.legislation.gov.uk/ukpga/2023/54/contents/enacted

Familiarise yourself with the rules surrounding exclusion grounds and contract modifications, as these now apply to contracts that would have previously been procured under the DSPCRs.

https://www.legislation.gov.uk/ukpga/2023/54/contents/enacted

Further information and detail is available at Transforming Public Procurement

Northern Ireland

Accompanying factsheet for Northern Ireland designed to be reviewed alongside the 6 parts of the Procurement Act 2023 Knowledge Drop for contracting authorities.

This factsheet is intended to highlight some of the exemptions or differences to the main rules of the act for contracting authorities that are transferred Northern Ireland authorities and procurements under a transferred Northern Ireland procurement arrangement. You should assume that the obligations detailed in the Knowledge Drop series apply unless stated within this factsheet.

Part 1: Understanding the purpose of the Procurement Act

Exemptions

The national procurement policy statement and the Wales procurement policy statement do not apply to a procurement under a transferred Northern Ireland procurement arrangement or a transferred Northern Ireland authority (except in relation to a procurement under a reserved procurement arrangement).

Differences

N/A

Part 2: Pre procurement considerations under the Procurement Act

Exemptions

The requirement to publish pipeline notices do not apply to a transferred Northern Ireland authority.

Differences

N/A

Part 3: Changes to procurement procedures and routes to market

Exemptions

N/A

Differences

N/A

Part 4: Changes to assessment and award

Exemptions

The requirement to publish a copy of the contract along with the contract details notice does not apply to a contract awarded by a transferred Northern Ireland authority (unless it is awarded under a reserved procurement arrangement) or under a transferred Northern Ireland procurement arrangement.

Differences

N/A

Part 5: Greater contract governance

Exemptions

The requirement to publish a contract change notice (or a copy of the amended contract) does not apply to a contract that was awarded by a transferred Northern Ireland authority (unless it is awarded under a reserved procurement arrangement or a devolved Welsh procurement arrangement) or under a transferred Northern Ireland procurement arrangement.

The requirement to publish details of contract payments over £30,000 does not apply to a public contract awarded by a transferred Northern Ireland authority (unless it is awarded under a reserved procurement arrangement or a devolved Welsh procurement arrangement) or under a transferred Northern Ireland procurement arrangement.

Additional prompt payment measures (the inclusion by default of implied 30-day payment terms into public contracts and associated subcontracts and the requirement to publish payment compliance notices) does not apply to a transferred Northern Ireland authority.

Procurement investigations do not apply to a Northern Ireland department however they may be bound by any recommendations issued.

Differences

N/A

Part 6: Preparing for the Procurement Act

What additional action do you need to take if you will be procuring a transferred Northern Ireland authority contract or contracts under a transferred Northern Ireland procurement arrangement?

Be aware that part 6 of the Procurement Act (Regulated Below - Threshold Contracts) does not apply to transferred Northern Ireland Authorities or procurements under a transferred Northern Ireland procurement arrangement.

Familiarise yourself with which contracting authorities should be treated as a transferred Northern Ireland authority for the purposes of this act.

• A contracting authority is to be treated as a transferred Northern Ireland authority for the purposes of this act if the authority’s functions:

a. are exercisable only in or as regards Northern Ireland, and

b. are wholly or mainly functions that do not relate to reserved or excepted matters (within the meaning given by the Northern Ireland Act 1998)

Familiarise yourself with the definition of a procurement arrangement.

• A procurement as part of which the contract is awarded:

a. in accordance with a framework or similar arrangement,

b. by reference to a dynamic market or similar arrangement, or

b. following a procedure or other selection process carried out:

i. jointly by two or more authorities, or

ii. by a centralised procurement authority or equivalent body

Familiarise yourself with the definition of a transferred Northern Ireland procurement arrangement.

• A procurement arrangement is a transferred Northern Ireland procurement arrangement if:

a. the framework was awarded by a transferred Northern Ireland authority,

b. the dynamic market was established by a transferred Northern Ireland authority,

c 1. the centralised procurement authority is a transferred Northern Ireland authority, or

7d. a transferred Northern Ireland authority is designated the lead authority in the tender or transparency notice

Familiarise yourself with the definition of a reserved procurement arrangement.

• A procurement arrangement is a reserved procurement arrangement if it is not

a. a devolved Welsh procurement arrangement,

b. a transferred Northern Ireland procurement arrangement, or

c. a devolved Scottish procurement arrangement

Further information and detail is available at Transforming Public Procurement

Schools

Accompanying factsheet for schools designed to be reviewed alongside the 6 parts of the Procurement Act 2023 Knowledge Drop for contracting authorities.

This factsheet is intended to highlight some of the exemptions or differences to the main rules of the act for public contracts awarded by schools. You should assume that the obligations detailed in the Knowledge Drop series apply unless stated within this factsheet.

Part 1: Understanding the purpose of the Procurement Act

Exemptions

N/A

Differences

N/A

Part 2: Pre procurement considerations under the Procurement Act

Exemptions

N/A

Differences

N/A

Part 3: Changes to procurement procedures and routes to market

Exemptions

N/A

Differences

N/A

Part 4: Changes to assessment and award

Exemptions

N/A

Differences

Part 5: Greater contract governance

Exemptions

The requirement to publish details of contract payments over £30,000 does not apply to public contracts awarded by schools.

Additional prompt payment measures (the inclusion by default of implied 30-day payment terms into public contracts and associated subcontracts and the requirement to publish payment compliance notices) does not apply to a public contract awarded by schools.

Differences

N/A

Part 6: Preparing for the Procurement Act

What additional action do you need to take if you will be procuring contracts for schools?

Be aware that part 6 of the Procurement Act (Regulated Below - Threshold Contracts) does not apply to schools.

https://www.legislation.gov.uk/ukpga/2023/54/contents/enacted

Familiarise yourself with a definition of a school under the Procurement Act 2023.

https://www.legislation.gov.uk/ukpga/2023/54/contents/enacted

Further information and detail is available at Transforming Public Procurement

Light Touch

Accompanying factsheet for light touch contracts designed to be reviewed alongside the 6 parts of the Procurement Act 2023 Knowledge Drop for contracting authorities.

This factsheet is intended to highlight some of the exemptions or differences to the main rules of the act for light touch contracts. You should assume that the obligations detailed in the Knowledge Drop series apply unless stated within this factsheet.

Part 1: Understanding the purpose of the Procurement Act

Exemptions

Light touch contracts are defined by CPV codes and are exempted from certain parts of the act.

For healthcare procurement there will be further exemptions where the act will be disapplied in relation to healthcare procurement by NHS in England (where The Health Care Services (Provider Selection Regime) Regulations 2023 will apply.

Differences

Light touch contracts have different thresholds.

Part 2: Pre procurement considerations under the Procurement Act

Exemptions

N/A

Differences

Light touch contracts may also include the needs of the end user in the award criteria often referred to as ‘user choice’.

Part 3: Changes to procurement procedures and routes to market

Exemptions

The requirement to publish the transparency notice does not apply to direct awards for user choice contracts.

Differences

Minimum timescales for light touch contracts are not mandated.

There is no maximum term specified for a framework that is a light touch contract.

Light touch contracts also have the benefit of undertaking a direct award on the basis of user choice.

Part 4: Changes to assessment and award

Exemptions

The requirement to observe a standstill period does not apply to light touch contracts though you may choose to have a voluntary one.

Differences

The contract details notice must be published within 120 days, rather than 30 days.

Part 5: Greater contract governance

Exemptions

Setting, assessing and publishing KPIs does not apply for light touch contracts.

The requirement to publish contract performance notices for poor performance or breaches of contract does not apply to light touch contracts.

The requirement to publish a contract change notice (or a copy of the amended contract) does not apply to light touch contracts.

Differences

There are increased flexibilities for modifications made to light touch contracts during their term, which may be substantial or above threshold or outside the scope of permitted modifications.

Part 6: Preparing for the Procurement Act

What additional action do you need to take if you will be procuring light touch contracts?

Familiarise yourself with the CPV codes for light touch contracts once the regulations are confirmed and the Health Care Services (Provider Selection Regime) Regulations 2023 if they apply to you.

If it applies to you, obtain further information on the Provider Selection Regime to understand which of your contracts may sit under that regime rather than the Procurement Act.

Familiarise yourself with the exclusion grounds in the Procurement Act 2023 as these will apply in full to light touch contracts.

https://www.legislation.gov.uk/ukpga/2023/54/contents/enacted

Familiarise yourself with the user choice assessment criteria so you understand when you might want to make use of it.

Further information and detail is available at Transforming Public Procurement

Concession

Accompanying factsheet for concession contracts designed to be reviewed alongside the 6 parts of the Procurement Act 2023 Knowledge Drop for contracting authorities.

This factsheet is intended to highlight some of the exemptions or differences to the main rules of the act for concession contracts. You should assume that the obligations detailed in the knowledge drop series apply unless stated within this factsheet.

Part 1: Understanding the purpose of the Procurement Act

Exemptions

N/A

Differences

Concession contracts have a higher threshold and there is a different methodology for calculating the value of a concession contract.

Part 2: Pre procurement considerations under the Procurement Act

Exemptions

N/A

Differences

N/A

Part 3: Changes to procurement procedures and routes to market

Exemptions

N/A

Differences

Dynamic markets cannot be used to award a concession contract. A concession contract that is also a utilities contract can be awarded under a utilities dynamic market.

A framework cannot be used to award a concession contract.

Part 4: Changes to assessment and award

Exemptions

N/A

Differences

N/A

Part 5: Greater contract governance

Exemptions

Setting, assessing and publishing KPIs does not apply to a concession contract.

The requirement to publish details of contract payments over £30,000 does not apply to a concession contract.

Additional prompt payment measures (30-day payment terms being implied into public contracts and associated subcontracts and the requirement to publish payment compliance notices) do not apply to a concession contract.

Differences

N/A

Part 6: Preparing for the Procurement Act

What additional action do you need to take if you will be procuring concession contracts?

Familiarise yourself with the definition of concession contracts under the Procurement Act 2023.

Section 8 (1) “concession contract” means a contract for the supply, for pecuniary interest, of works or services to a contracting authority where—

a. at least part of the consideration for that supply is a right for the supplier to exploit the works or services, and

b. under the contract the supplier is exposed to a real operating risk

Further information and detail is available at Transforming Public Procurement

Utilities and private utilities

This accompanying fact sheet is designed to be reviewed alongside the 6 parts of the Procurement Act 2023 Knowledge Drop for contracting authorities.

This factsheet is intended to highlight any exemptions or differences to the main rules of the act for utilities contracts and private utilities. You should assume that the obligations detailed in the Procurement Act 2023 Knowledge Drop for contracting authorities apply unless stated within this factsheet.

Part 1: Understanding the purpose of the Procurement Act

Exemptions

Private utilities (private companies that carry out utility activities in the energy, water and transport sectors) do not have to have regards to the national procurement policy statement or the Wales procurement policy statement.

Various utilities contracts are also fully exempt from the Procurement Act - see schedule 2 of the act for details. Further information can be found in the e-learning when it is available.

Differences

The contracting authority definition for utilities also includes public undertaking (funded from financial revenue from their activities) and private utilities alongside public authority (funded wholly or mainly out of public funds or subject to public authority oversight).

Utilities contracts have higher thresholds for the following types of contracts:

1. non-works
2. light touch
3. concessions

Part 2: Pre procurement considerations under the Procurement Act

Exemptions

The requirement to publish pipeline notices does not apply to private utilities.

The requirement to publish preliminary market engagement notices does not apply to private utilities.

Differences

N/A

Part 3: Changes to procurement procedures and routes to market

Exemptions

Contracts procured under a utilities dynamic market established by a qualifying utilities dynamic market notice do not require tender notices to be published for each contract awarded under it but instead they are to be provided to members of the market (or part of the market).

Differences

The maximum term for utilities frameworks let by a public authority or public undertaking is eight years.

There is no maximum term specified for conventional frameworks awarded by private utilities.

Dynamic markets for use by utilities are called utilities dynamic markets.

For utilities contracts no minimum timescales are mandated for tenders from pre-selected suppliers (e.g. suppliers that are members of a utilities dynamic market) where a short tendering period has been agreed by all. In the absence of such agreement, the minimum timescales is 10 days.

Part 4: Changes to assessment and award

Exemptions

The requirement to observe a standstill period does not apply to private utilities when awarding a direct award (under section 41 direct award

in special cases). Examples of special cases include prototypes and development, additional or repeat goods, services or works, commodities, advantageous terms on insolvency and after compliantly switching to a direct award (section 43 switching to direct award).

The requirement to publish a contracts details notice (or a copy of the contract for contracts over £5m) does not apply to private utilities.

Differences

Private utilities have a wider discretion on whether to exclude suppliers and should consider any reference to “excluded” suppliers as “excludable” suppliers.

Part 5: Greater contract governance

Exemptions

The requirement to publish a contract change notice or a copy of the amended contract/ modification does not apply to private utilities.

Setting, assessing and publishing KPIs does not apply to a utilities contract awarded by private utilities.

The requirement to publish contract performance notices for poor performance or breach of contract does not apply to private utilities.

The requirement to publish details of contract payments over £30,000 does not apply to a utilities contract awarded by private utilities.

Additional prompt payment measures (the inclusion by default of implied 30-day payment terms into public contracts and associated subcontracts and the requirement to publish payments compliance notices) do not apply to a utilities contract awarded by private utilities.

The requirement to publish a contract termination notice does not apply private utilities.

Procurement investigations do not apply to private utilities however they are bound by any recommendations issued.

Differences

N/A

Part 6: Preparing for the Procurement Act

What additional action do you need to take if you will be procuring a utilities contract?

Familiarise yourself with the utilities activities in the Procurement Act:

• gas and heat
• electricity
• water
• transport
• ports and airports
• extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels Note that postal services is no longer a utilities activity.

Familiarise yourself with the exclusion grounds as these now apply to utilities contracts.

Further information and detail is available at Transforming Public Procurement

Wales

Accompanying factsheet for Wales designed to be reviewed alongside the 6 parts of the Procurement Act 2023 Knowledge Drop for contracting authorities.

This factsheet is intended to highlight some of the exemptions or differences to the main rules of the act for contracting authorities that are devolved Welsh authorities and procurements under a devolved Welsh procurement arrangement. You should assume that the obligations detailed in the Knowledge Drop series apply unless stated within this factsheet.

Part 1: Understanding the purpose of the Procurement Act

Exemptions

The national procurement policy statement (NPPS) does not apply to a procurement under a devolved Welsh procurement arrangement or a devolved Welsh authority (except in relation to a procurement under a reserved procurement arrangement).

Differences

The Wales procurement policy statement (WPPS) applies to a devolved Welsh authority (except in relation to procurement under a reserved procurement arrangement or transferred Northern Ireland procurement arrangement) or a procurement under a devolved Welsh procurement arrangement.

Part 2: Pre procurement considerations under the Procurement Act

Exemptions

N/A

Differences

N/A

Part 3: Changes to procurement procedures and routes to market

Exemptions

N/A

Differences

N/A

Part 4: Changes to assessment and award

Exemptions

For contracts awarded by a devolved Welsh authority, there is a requirement to publish a contract details notice. However, the requirement to publish a copy of the contract where the estimated value of the contract is more than £5 million does not apply, unless the contract was awarded as part of a procurement under a reserved procurement arrangement.

Differences

N/A

Part 5: Greater contract governance

Exemptions

The requirement to publish a copy of the amended contract or the modification, along with the contract change notice does not apply, unless the contract was awarded as part of a procurement under a reserved procurement arrangement.

Differences

N/A

Part 6: Preparing for the Procurement Act

What additional action do you need to take if you will be procuring a devolved Welsh authority contract or contracts under a devolved Welsh procurement arrangement?

Be aware that some requirements of part 6 of the Procurement Act (Regulated Below - Threshold Contracts) do not apply to a devolved Welsh authority or a procurement under a devolved Welsh procurement arrangement. For example, a devolved Welsh authority will not be prohibited from restricting the submission of tenders by reference to an assessment of a supplier’s suitability to perform the contract.

Familiarise yourself with which contracting authorities should be treated as a devolved Welsh authority for the purposes of this act, see Government of Wales Act 2006.

Familiarise yourself with the definition of a procurement arrangement:

• a procurement as part of which the contract is awarded:

a. in accordance with a framework or similar arrangement,

b. by reference to a dynamic market or similar arrangement, or

c. following a procedure or other selection process carried out:

i. jointly by two or more authorities, or

ii. by a centralised procurement authority or equivalent body

Familiarise yourself with the definition of a devolved Welsh procurement arrangement:

• a procurement arrangement is a devolved Welsh procurement arrangement if:

a. the framework was awarded by a devolved Welsh authority,

b. the dynamic market was established by a devolved Welsh authority,

c. the centralised procurement authority is a devolved Welsh authority, or

d. a devolved Welsh authority is designated the lead authority in the tender or transparency notice

Familiarise yourself with the definition of a reserved procurement arrangement

• a procurement arrangement is a reserved procurement arrangement if it is not:

a. a devolved Welsh procurement arrangement,

b. a transferred Northern Ireland procurement arrangement, or

c. a devolved Scottish procurement arrangement

Further information and detail is available at Transforming Public Procurement