The new procurement landscape
As you will all be aware:
- The Procurement Act 2023 (“PA 23”) came into force on 24 February 2025
- The Public Contracts Regulations 2015 (PCR 15) still apply to certain procurements/contract modifications
- The Health Care Services (Provider Selection Regime) Regulations 2023 (“PSR”) came into force on 1 January 2024
It is therefore crucial for you to know which regime applies to the services you provide/procure.
- For procurements commenced after 24 February 2025, the PA 23 will apply – when procuring (if you are also a contracting authority) or when bidding
- But for processes commenced prior to this date (not caught by the PSR), the PCR continue to apply, both in terms of awarding and managing contracts
- If you provide relevant health care services to relevant authorities, those relevant authorities will need to be complying with the PSR. The PSR is a standalone regime that is not impacted by the PA 23 or the PCR 15. Charities will not be relevant authorities for the PSR does not apply when commissioning.
Our experience is that there has been a mixed approach across the country – some contracting authorities are seeking to continue to apply the PCR 15, by calling off frameworks, or modifying existing contracts. Others are running new processes in accordance with the PA 23.The key to success is to appreciate the nuances between the different regimes, and understand how the relevant processes operate.
For example, there are far more transparency requirements under the PA 23 and the PSR, but are you checking the correct places for notices? For opportunities under the PA 23, you need to be signed up to the Central Digital Platform. There is greater transparency under the PA 23 and the PSR before a standstill period commences – therefore you can see what contracts are intended to be awarded. You can therefore seek to check compliance with the relevant regime. As an example, under the PA 23 there are now greater transparency requirements where contracting authorities seek to make a direct award to a supplier (note this is not a direct award under a framework agreement).
Previously many direct awards went unnoticed, unless you were specifically looking for a particular opportunity. Now, the contracting authority should (in most cases, but not user choice contracts for example) be publishing a Transparency Notice, a Contract Award Notice to commence a standstill period, and then a Contracts Details Notice. These notices allow you to consider whether the direct award falls within one of the grounds that permit direct awards.
The time limits to challenge are different under the different regimes. The standstill periods under each regime are different lengths, as is the way each standstill period is calculated. This is key as for example, a representation under the PSR must be brought before the end of the standstill period (under 3 of the 5 decision making processes). If you want to challenge under the PA 23, there are more options to challenge before the Standstill Period ends, rather than once the contract is signed.
We can expect that given the increased emphasis on contract management under the PA 23, your contracts going forward are likely to be managed to a greater extent. Poor performance under a contract could, in certain circumstances, lead to you being excluded for future tenders across the public sector. Those of you that are contracting authorities will need to manage your suppliers in accordance with the rules.
Therefore, knowing which regime applies and what that regime requires, is key to both complying with the required procurement rules, and if bidding, to successfully bidding, and ensuring that contracting authorities/relevant authorities are complying with their procurement law obligations.
Contact us
If you would like to discuss the procurement law issues you are facing, then please get in touch with one of our specialist procurement lawyers.