The Procurement Act 2023 (Commencement No. 3) Regulations 2024 – Transitional and Saving Provisions

The Procurement Act 2023 (Commencement No.3 and Transitional and Saving Provisions) Regulations 2024 (the “Regulations”) were published on 30 May 2024, having been made on 22 May 2024, alongside the Procurement Regulations 2024 – please see our separate article on these here .

The following article sets out a summary of some of the key provisions of those Regulations and their implications.

Regulation 2 – Commencement Date

Regulation 2 means that the majority of the Procurement Act 2023 (the “Act”) not previously commenced by The Procurement Act 2023 (Commencement No. 1 and Saving Provision) Regulations 2024 and The Procurement Act 2023 (Commencement No. 2) Regulations 2024  will be brought into force on 28 October 2024.

Regulation 5 – Saving provisions relating to the Public Contracts Regulations 2015

Regulation 5 sets out that the 2015 (“PCR”) will continue to apply after the PCR is revoked by the Act, subject to certain modifications (discussed below), to procurement procedures, contracts, frameworks, agreements and dynamic purchasing systems (“DPS”), in the following circumstances:

• A sub-central contracting authority has submitted for publication under PCR Regulation 51) a prior information notice as a call for competition (in accordance with PCR Regulation 26(9)), before 26 May 2023.
• Before 28 October 2024, a contracting authority has;
• Awarded the contract, concluded the framework agreement or established the DPS.
• Contacted an economic operator to commence the negotiated procedure without prior publication in cases set out in PCR Regulation 32.
• A contract notice (pursuant to PCR Regulations 26(8) or 75(1)(a) or a contest notice has been submitted for publication in accordance with PCR Regulation 51.
• Published a voluntary transparency notice expressing intention to enter into a contract in accordance with PCR Regulation 99(3)(b).
• Published information about a contract award opportunity on Contracts Finder in accordance with PCR Regulation 110(2).

Where the PCR continues to apply in the circumstances described above, Regulation 5(4) makes certain transitional modifications to the PCR:

• The period of validity of a DPS cannot be changed after 27 October 2025 and will expire at the end of 27 October 2028. References to ‘every financial year’ in PCR Regulation 113(7)(a) (relating to the publication of compliance with prompt payment requirements) will be amended to refer instead to a period beginning on 28 October 2024 and ending 31 March 2025, with subsequent periods being six months.

Regulation 6 – Transitional provisions relating to repeat services or works supplied under a contract awarded under the PCR

Regulation 6 is a transitional provision that addresses PCR Reg 32(9). Regulation 6 states that a contracting authority may award a public contract directly under s.41 of the Act (direct award in special cases) where:

• a public contract concerns the supply of services or works by the existing supplier that are similar to existing services or works; and
• the existing services or works were supplied under a public contract or framework agreement that was award in accordance with the PCR.

Where applying s.41 of the Act in the above circumstances, Regulation 6 amends paragraph 8 of Schedule 5 of the Act to read as follows:

‘8 The public contract concerns the supply of services or works by the existing supplier that are similar to existing services or works where—

• the existing, services or works were supplied under a public contract that was awarded in accordance with regulation 26(1) and (2) of the Public Contracts Regulations 2015 within the period of five years ending with the day on which the transparency notice is published, and
• there was a disclosure as soon as that earlier contract was put up for tender that met the requirements of regulation 32(11) of the Public Contracts Regulations 2015.

The focus of this article has been the implications of the Regulations on the PCR, but for contracting authorities and utilities procuring under the Defence and Security Public Contracts Regulations 2011, the Utilities Contracts Regulations 2016 and the Concession Contracts Regulations 2016, it is important to note that the Regulations make similar savings and transitional amendments to those regimes as to the PCR.

Sharpe Pritchard advise contracting authorities and utilities on all manner of public procurement matters. Our experts are on hand to guide you through the intricacies of the new procurement regime and to advise on any other procurement related issues.