Procurement Act 2023 — transparency and new notice requirements explained

With the Procurement Act 2023 projected to come into force in February 2025, Andreas Petrou and Dana Samatar explore the new requirements for publishing notices under the Act and the principles of transparency that underpin them.

New procurement objectives

A transparent procurement process encourages fairness in competition and aids the understanding of tender requirements and decisions, including for the purposes of challenging decisions.

Transparency is enshrined in the overarching principles of the current EU-based legislation — the Public Contract Regulations 2015 — with Regulation 18(1) stating that “contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner”.

While the new Act contains a number of procurement objectives — detailed under section 12 of the Act and which replace the overarching principles of the current Regulations — the principle of transparency isn’t directly replaced. Under the new objectives, there’s a more limited obligation on a contracting authority to share “information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions”. However, more importantly, transparency is baked into the Act by design — underpinning an extensive series of notices that contracting authorities are expected to publish under the Act. These span the whole procurement lifecycle, from pre-procurement planning to eventual termination or expiry of the contract.

As the Act brings together different existing regimes, a ‘contracting authority’ under the Act includes a public authority, public undertaking or private utility (in relation to utilities contracts), as well as public authorities more generally (other than excluded authorities).

New notices 

Generally speaking, contracting authorities will need to publish many more notices in respect of each procurement under the Act than is required under the current Regulations.

Some typical notices are set out below. Further details with regard to the content of notices are set out in the Procurement Regulations 2024, which will come into force at the same time as the Act. 

Pre-procurement stage

Planned Procurement Notice (section 15 of the Act) — this new notice is comparable to the Prior Information Notice (PIN) available under Regulation 48 of the PCR. It’s optional and allows a contracting authority to give notice that it intends to publish a tender notice. 

Preliminary Market Engagement Notice (section 17) — if a contracting authority chooses to carry out preliminary market engagement, it must publish a preliminary market engagement notice before it publishes a tender notice. If not, it must provide the reason for not doing so in the tender notice. Other than in very limited circumstances, this requirement doesn’t apply to utilities.

Pipeline Notice (section 93) — this applies to contracting authorities (excluding utilities) that envisage an annual spend of more than £100m under relevant contracts. These authorities must publish a notice in each financial year that sets out specified information about any contract with an estimated value of more than £2m for which the authority intends to publish a tender notice or transparency notice during the next 18 months. This must be issued within 56 days of the start of each financial year. 

Award stage 

Tender Notice (section 21) — this must be published where a contracting authority is undertaking a competitive tendering procedure. This notice is akin to the contract notice (also known as an FTS notice and previously the OJEU notice) under the current Regulations.

Dynamic Marketing Notices (section 39) — there are a number of notices that must be published in relation to the establishment of a dynamic market, any modification of a dynamic market and the ceasing of operation of a dynamic market. These requirements don’t apply to private utilities.

Transparency Notice (section 44) — other than in limited circumstances, contracting authorities must publish this notice before awarding a contract via a direct award.

Contract Award Notice (section 50) — other than in limited circumstances, a contract award notice must be published before a contracting authority enters into a public contract. The contract award notice triggers the mandatory eight-working-day standstill period. The assessment summary, which debriefs bidders post-tender evaluation, must have been issued before this notice is published.

Contract Details Notice (section 53) — other than in limited circumstances, contracting authorities must publish this notice within 30 days of the day the contract is entered into (or within 120 days if the contract is a light touch contract). A copy of the contract must be published if the contract has an estimated value of more than £5m. The contract details notice is similar to the contract award notice under the current Regulations. 

Below-Threshold Tender Notice (section 87) — contracting authorities must publish a below-threshold tender notice for below-threshold contracts which are advertised beyond a limited group of particular or pre-selected suppliers. A ‘below-threshold’ contract is one that has an estimated value of at least £12,000 (including VAT) in the case of central government authorities and at least £30,000 (including VAT) for all other contracting authorities. The notice must be published prior to advertising the contract. 

Contract management stage

Payments Compliance Notice (section 69) — contracting authorities must publish a payments compliance notice in relation to how well it has complied with the requirement under the Act to make payments to suppliers within 30 days in respect of payments made or due to suppliers under the authority’s existing public contracts. This is a biannual requirement (at particular times in the year) to publish the required notice in respect of the preceding six-month period. The notice must be published within 30 days of expiry of that preceding six-month period.  

Information About Payments (section 70) — contacting authorities must publish specified information about any individual payment they make under a public contract which is over £30,000. This is a quarterly requirement, with the publication within 30 days of the end of the quarter.

Contract Performance Information (section 71) — this contains two requirements. Firstly, for those contracts worth more than £5m where at least three KPIs have been set (as required under s.52 of the Act), the contracting authority must (once a year) review performance against the KPIs and publish information relating to the assessment. Secondly, in respect of all public contracts, where there has been a breach of contract that has led to termination, damages or a settlement agreement (or the supplier is failing to perform despite having had a chance to improve), the contracting authority must publish information relating to the breach or failure within 30 days of the breach or failure arising.  

Contract Change Notice (section 75) — other than in specific circumstances, contracting authorities must publish a contract change notice when an above-threshold modification to a public contract is made. If a contract change notice is required, contracting authorities must also publish a copy of the contract as modified for all contracts with an estimated value of more than £5m, either before or after the modification. 

Contract Termination Notice (section 80) — other than in limited circumstances, contracting authorities must publish a contract termination notice within 30 days of the date of expiry or termination of the contract. 

What’s the impact on public bodies?

The Act will bring with it a significantly increased requirement for the publication of notices and related information that contracting authorities should be aware of. 

The notices apply throughout the lifecycle of the procurement, including the lifetime of the resulting contract. This means that contracting authorities must have the information and processes in place to comply with the requirement to provide more information on a more regular basis. 

This will not just impact the procurement stage but throughout the entire contract lifecycle — including sensitive issues such as payments, changes and supplier failures. Contracting authorities should therefore be reviewing their procedures and policies to ensure that they’re able to comply with the new obligations. 

It’s imperative to plan ahead and check that sufficient resources are available to implement and fulfil the new requirements. 

What’s the impact on suppliers?

The increased transparency embedded in the changes to notice requirements should provide suppliers with more and better information in relation to procurement opportunities, the quality of contracting authorities as customers and where there’s a potential issue that may give rise to a challenge.

This should allow suppliers to be better equipped when bidding for certain contracts and more informed if seeking to challenge an award. 

On the downside, failures by suppliers — even ones where a settlement is reached — will become public knowledge. 

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