Part 2 Consultation on draft regulations to implement the Procurement Bill – deadline for responses closing on 25 August 2023

On 17 July 2023, the Cabinet Office published the second instalment of the consultation on the draft regulations required to implement the new public procurement regime established by the Procurement Bill (the ‘Bill’). The two consultations are technical consultations, with Part 2 focusing on the notices which must be used by contracting authorities (‘Authorities’) after the Bill comes into effect. This article will look at the key differences between the current notices in the Public Contracts Regulations 2015 (the ‘PCR’) and those proposed in the draft regulations. It should be noted that there is not an equivalent PCR notice for every new notice proposed but the consultation sets out the context and policy intent for each new notice.

Key changes

Prior Information Notices

Under the PCR, Authorities are able to use Prior Information Notices (‘PINs’) to publicise their planned procurements before issuing a formal call for competition using a Contract Notice (though note that use of a PIN as a call for competition is no longer possible following PPN 05/23). In the Bill, three alternative notices have been proposed for this purpose in place of the current PIN, recognising the current different uses of PINs in practice:

1. Planned Procurement Notices – these are designed to give the market as much information as possible to allow suppliers to determine whether the procurement is something they wish to bid for with room to prepare for such bids before publication of the tender notice. Where the notice has been published between 40 days to a year ahead the Authority will be able to reduce their tender period from 25 to 10 days. This is equivalent to the PCR position in relation to PINs,
2. Preliminary Market Engagement Notices – Authorities can use this notice to invite suppliers to participate in advance engagement or notify the market that such engagement has taken place before the publication of a tender notice (where it is not used the reasoning must be provided in the tender notice), and
3. Pipeline Notices – these are used when the contract is estimated to have a value of more than £2 million to give advance notice of this opportunity.

Contract Notices

Contract Notices advertise the formal start of a procurement (or call for competition), detailing information such as the scope and estimated value of the contract, conditions for participation, award procedure and the Authorities’ selection and award criteria. This Bill proposes two notices to replace this function:

1. Tender Notices – these will be an invitation to submit a tender in open procedures or for requests to participate in competitive flexible procedures (it cannot be used for cases of direct award) in order to allow visibility of what the Authority is intending to procure. The notice must be published alongside any associated tender documentation with the rules that govern their use. For below threshold procurements, there is a simplified Tender Notice, and
2. Dynamic Market Notice – the Bill replaces the dynamic purchasing and qualification system with two new commercial purchasing tools, the Dynamic Market and Utilities Dynamic Market. The notices will be published at various times during the establishment or operation of these tools and in the case of utilities when the tool ceases to operate.

Voluntary Transparency Notices

In the PCR, a Voluntary Transparency Notice is used by Authorities to advertise their justification for a direct contract award (used for the award of a contract without prior publication of a contract notice or often for modifications under regulation 72). They also set out the details of the economic operator who was awarded the contract and information on the object of the contract. This notice will be replaced by a ‘Transparency Notice’ which must be published before awarding a contract under new direct award provisions to inform stakeholders of the decision and allow interested parties to scrutinise the grounds of award.

‘Standstill Letters

Notices of decisions to award (i.e. award decision notices or ‘standstill letters’) are letters detailing the reasons for an award decision and the time period which the Authority will observe before a contract is entered into or a framework agreement is concluded. These have been replaced in the Bill with (confusingly) ‘Contract Award Notices’. This notice will be to alert the market to the fact that a decision to award a contract has been made and the outcome of the procurement process (including whether all lots are being awarded proceeded). Separate assessment summaries will also be issued privately before the publication of this notice to tenderers pertaining to their bid and if they were unsuccessful, they will also receive a copy of the winning tenderers summary. For most cases, the Contract Award Notice will start the standstill period. Under the Bill, Authorities do not need to publish these notices for direct award (user choice contracts), call off contracts under defence and security frameworks and below threshold contracts.

Contract Award Notice

Under the PCR, Authorities must publish the results of their procurement process post award with information such as the number of tenders received, the body responsible for review and details on the highest/lowest tenders taken into consideration when awarding. The Bill introduces a ‘Contract Details Notice’ for this function, making several changes to the timeframes for publication in light touch regimes such as requiring these are published within 120 days or 180 days where the value is over £5 million.

Modification Notice

For certain types of modification under current PCR regulation 72, PCR requires that a notice must be published where a contract has been modified during its term, describing the procurement before and after the modification with the circumstances that rendered the change necessary. It may also note the increases in price from the modification and any oversight bodies. The Bill instead introduces a ‘Contract Change Notice’ with the intention of making important decisions made in larger contracts more transparent and open to scrutiny. These also aim to address the fact that little information is available currently during the implementation phase of contract management.

Other new notices

• Contract Performance Notices – these are used to publish KPIs for public contracts which have an estimated value of over 5 million,
• Payment Compliance Notices – these intend to replace and strengthen regulation 113(7) of the PCR with the aim of moving publishing requirements on payment performance in the public sector closer to those in the private sector,
• Procurement Termination Notices – the notice will be used by Authorities to inform the market they have decided to not proceed with a procurement where a tender notice or transparency notice has been published, and
• Contract Termination Notices – Authorities will use this notice to inform stakeholders that a contract has been terminated and allow for scrutiny of this decision.

Key takeaways

The closing date for the second instalment of the consultation is the 25 August 2023 and responses should be submitted here. Further feedback will also be requested on a prototype of the e-procurement system. Once the Procurement Act is in force, all notices will need to be published on the Central Digital Platform and the draft Statutory Instrument only outlines what the notices will need to include as the form of notices themselves are currently only being released in a test environment.

The Procurement Bill is still in progress with ‘Ping-Pong’ being expected to resume in September following Parliament’s Summer Recess.

This consultation does not only focus on proposed notices under the Bill, but it also covers other topics such as using the Central Digital Platform, ‘Unique Identifiers’ which allow for published data to be attributed correctly to specific parties or processes, Authorities powers to make consequential amendments and the application of the Bill on defence Authorities.

We advise contracting authorities on all manner of issues relating to public procurement and our experts are on hand to guide authorities through the intricacies of running a procurement and responding to procurement challenges. 

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.