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24 May 2024
On 22 May 2024 the Procurement Regulations 2024 (the ‘2024 Regulations’) were made, but the majority of the provisions do not come into force until the Procurement Act 2023 (the ‘2023 Act’) substantively commences. This is necessarily the case because the 2024 Regulations implement various aspects and details from the 2023 Act, including the content of procurement notices and how the Central Digital Platform will operate.
Drafts of the 2024 Regulations were originally consulted on in 2023, as we previously explored here. Since the consultation concluded, the two draft statutory instruments published for consultation have been combined into one statutory instrument, the 2024 Regulations.
Now that the 2023 Act, 2024 Regulations and the Procurement Act 2023 (Commencement No.3 and Transitional and Saving Provisions) Regulations 2024 (see our separate article here) are made, we have the main pieces of the procurement reform ‘jigsaw’ in place. However, it is worth noting that government has been publishing detailed guidance on the Procurement Act 2023 here and has said that it would continue to do so. Further, missing detail from the 2023 consultations on calculations for vertical and horizontal arrangements and utilities are still to be addressed, and there remain a handful of provisions in the 2023 Act against which a commencement order has not yet been made. We will therefore continue to watch this space.
In the meantime, we set out below a brief overview of some key provisions from the 2024 Regulations:
Once the 2023 Act comes into force, all notices will be required to be published on the Central Digital Platform. The 2024 Regulations provide the detail on what the notices will need to include – in some cases adding to, and in other cases supplementing the relevant notice provisions in the 2023 Act. This provides the legislative basis for, and an insight to, the fields that will need to be populated in the notices on the Central Digital Platform.
By way of reminder, the procurement notices to be published under the 2023 Act are set out in the diagram below. Note that the list below includes those notices that are optional and those that are only mandatory in certain circumstances (e.g. where triggered by contract values). The 2024 Regulations also list the detail to be included in Assessment Summaries to be provided to tenderers prior to the publication of Contract Award Notices.
The 2024 Regulations also outline other provisions which will supplement the 2023 Act, including regulation 42 and Schedule 1 which explain what constitutes a ‘light touch service’ for the purposes of s9 of the 2023 Act. The procurement of light touch services is exempt from certain requirements under the 2023 Act. Additionally, the 2024 Regulations set out which of these services may be reserved so that contracting authorities can require that only a qualifying public service mutual bid for these contracts.
Regulation 43 further disapplies the 2023 Act in relation to procurements by the NHS in England and instead applies the Health Care Services (Provider Selection Regime) Regulations 2023.
The 2024 Regulations set out which CPV codes will be used to identify each of these light touch services. These remain as the codes used within the Common Procurement Vocabulary (as adopted by Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary).
Regulation 44 defines the term “central government authority” as used in paragraph 5(1) of Schedule 1 of the 2023 Act (relating to the financial thresholds for procurements covered by the 2023 Act), by reference to the list of entities in Schedule 2 of the 2024 Regulations.
Similarly, regulation 45 defines the term “works” for the purpose of paragraph 5(1) of Schedule 1 to the 2023 Act, by reference to the list of CPV codes set out in Schedule 3 of the 2024 Regulations.
We advise contracting authorities and utilities on all manner of issues relating to public procurement and our experts are on hand to guide you through the intricacies of the procurement reforms and to advise on any other procurement related issues.
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 issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk.
