Unwrapping the Procurement Act 2023 - Market Engagement

The Government Commercial Function has launched Knowledge Drops providing Guidance and training for the new Procurement Act 2023. There are six knowledge drops for Contracting Authorities, three for Suppliers, and three for Small to Medium-sized Enterprises (SMEs) and Voluntary, Community and Social Enterprises (VCSEs). The Procurement Act 2023 will apply to all public contracts above the thresholds in Schedule 1 of the Act from 1st January 2024.

The Procurement Act 2023 is designed to make procurement simpler, shorter, more flexible, and more applicable to the environment and social value. The Procurement Act 23 is a devolved government function and applies in England, Wales and Northern Ireland but not Scotland. It will apply to public contracts valued at some £300bn/year.

Frith Resource Management considers the Procurement Act 2023 is an improvement on the current Public Contracts Regulations 2015 as it requires wider early market engagement, amongst other changes (see our earlier article). The market engagement should provide SMEs and VCSEs opportunities to participate and inform the preparation of the Bidder Selection and Invitation to Tender (ITT) documents.

Contracting authorities with an annual expenditure of >£100m (all Local Authorities) should publish a Pipeline of Future Procurement Notice at the start of each financial year, summarising the contracts they propose to procure over the next 18 months. The first Pipeline Notices should be published in April 2024.

Contracting authorities should publish a Preliminary Market Engagement Notice to advertise the procurement opportunity. If a procurement is not included in the Pipeline Future Procurement Notice and/or a Preliminary Market Engagement Notice, then the Contract Notice must state why these Notices were not published. A Market Engagement Notice may also state the outcome of the market engagement.

The Government Commercial Function is going to have a Central Digital Platform on which all Suppliers, SMEs and VCSEs can register their details. Such details can be referenced in SQ and ITT submissions without further repetition. We await further details from the Government Commercial Function on the Central Digital Platform and will publish a further blog on this in the New Year.

The award of contracts under the Procurement Act 2023 shall be on the Most Advantageous Tender (MAT), rather than the current Most Economically Advantageous Tender (MEAT). This is intended for award on more than price, i.e. the broad range of evaluation criteria including environment and social value. The award criteria should be consulted upon in the market engagement.

It should also be noted that all procurements shall require a Conflict Assessment. This should include an assessment of the actual, potential and perceived conflict of interest throughout the procurement, from the planning stage to the award stage.

We recognise that Contracting Authority and Suppliers staff may be over-stretched with the requirements of the market engagement requirements of the Procurement Act 2023. Our team at FRM can provide guidance and support as needed, either through a Critical Friend role or more detailed technical advice. Email cherie@frithrm.com or bob@frithrm.com if you would like to discuss, more details of our capabilities are at www.frithrm.com or call 01746 552423