精东影视

Central government and the wider public sector represent the largest built environment client base. From central government alone there is 拢164bn of planned investment in a two-year period up to 2024/25 in major infrastructure and construction projects.

Therefore, contractors, consultants and other suppliers tendering to the public sector need to be aware that the Procurement Act 2023 came into force on 24 February 2025.

The new act consolidates and repeals the following public contract tender regulations:

• The Defence and Security Public Contracts Regulations 2011
• The Public Contracts Regulations 2015
• The Utilities Contracts Regulations 2016
• The Concession Contracts Regulations 2016.

Procurement procedures

As part of the act鈥檚 efforts to simplify and create more flexibility within the new procurement regime, there are now two primary routes to market. These are:

• The open procedure 鈥� a single-stage procurement process pursuant to which any bidder able to fulfil the requirements of the contract can submit a tender.
• The competitive flexible procedure, being 鈥渟uch other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the public contract鈥�.

The adoption of innovative new procurement processes will be a matter of evolution and not revolution

Notwithstanding the simplification of tender procedures, it is unlikely that we will see substantive change overnight. The well-trodden open procedure will remain available to contracting authorities, while the new competitive flexible procedure will not prevent them from adopting processes that are in practice similar to previous modes of tendering. The adoption of innovative new procurement processes will be a matter of evolution and not revolution.

Exclusion and debarment

Although the concepts of mandatory and discretionary grounds for exclusion remain, any supplier to which a ground for exclusion applies will now be known as an excluded (if a mandatory ground applies) or excludable (if a discretionary ground applies) supplier. An excluded supplier must not be awarded a public contract or otherwise take part in a public procurement exercise, whereas an excludable supplier may (at the discretion of the contracting authority) not be awarded a public contract or take part in a public procurement exercise.

The act creates a new debarment list, to be managed by the new Procurement Review Unit. Any supplier can be subject to an investigation to see whether an exclusion ground properly applies to it. If it is determined that a supplier is either an excluded or excludable supplier, the name of that supplier can be entered onto the debarment list.

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Before the supplier鈥檚 name appears on the list, there will be an eight-working-day standstill period. During this time, an application to the court objecting to the decision will suspend the name appearing on the list. The decision to enter the supplier鈥檚 name onto the list will also be subject to a 30-day limitation period.

Transparency

There is increased transparency under the act and the supporting regulations which require contracting authorities to publish notices throughout the whole of the procurement cycle on the government鈥檚 Find a Tender platform.

For applicable contracts, in addition to giving notice of tender opportunities and contract awards, public bodies will be required to publish preliminary market engagement notices and pipeline notices at the pre-procurement stage.

Notably, transparency extends beyond the procurement process to the performance of the contract. The act introduces a contract management regime under which, among other things, public bodies will need to publish notices in respect of payments made under the contract, the supplier鈥檚 performance of the contract against pre-established key performance indicators, and termination of the contract.

Standstill period

The concept of a standstill period remains. This is the period following notice of a tender award during which the contracting authority cannot enter the contract with the winning bidder. Issuing proceedings within the standstill period invokes an automatic suspension which prevents the contracting authority from entering the contract unless the court orders otherwise.

However, the standstill period is changing from 10 days to eight working days. While under the previous regulations a claim issued outside the 10-day standstill period would still trigger the automatic suspension, the wording of the new act suggests that proceedings issued outside the eight-working-day period but before the contract is entered into will not benefit from the automatic suspension.

It remains the case that in some circumstances the standstill period will not apply, for example where a contract is called off from a framework.

Remedies

Remedies are largely unchanged. There is a new test to be applied when determining whether to lift the automatic suspension. This requires the court to have regard to:

• The public interest in upholding the principle that public contracts should be awarded in accordance with the law
• The public interest in avoiding delay in the supply of goods, services or works provided for in the contract
• The interests of suppliers, including whether damages are an adequate remedy for the clamant
• Any other matters that the court considers appropriate.

At a time when the government is promoting growth across the economy, underpinned by a desire to 鈥済et Britain building鈥� and with the public sector already hard pressed and under-resourced, it remains to be seen what impact the new regime will have.

Colin Jones is a construction partner and Stewart Morrison is a procurement partner at HCR Law