Challenging Decisions Under The Procurement Act 2023 – The Changing Landscape

The Procurement Act 2023 (the “Act”) will come into force on 24 February 2025¹, following a decision by the UK Government to delay this from its original implementation date of 28 October 2024². The Act, together with the Procurement Regulations 2024 and the National Procurement Policy Statement (which sets out strategic priorities for public procurement and which at the time of writing is under revision) provide a comprehensive regime for the award of public contracts in England, Wales and Northern Ireland replacing the Public Contracts Regulations 2015 and other regulations covering utilities, defence and concessions. The Act will govern new procurements which are started after it comes into force, and detailed transitional arrangements³ determine when a procurement is deemed to commence, which will need to be looked at where the commencement point is unclear. Procurements commenced prior to the Act coming into force, including competitions or contract awards after the Act comes into force but under framework arrangements and Dynamic Purchasing Systems entered into before the Act entered into force, will continue to be governed by the current regime, meaning that the two regimes will run in parallel for quite some time to come. 

This article looks at key points relating to challenges to contract awards under the Act. The Act also introduces other significant changes from a contentious perspective which will be considered in separate articles, including the introduction of a “debarment” list, and issues which affect in-life contract management such as the introduction of public reporting against KPIs and requirements to publish details of contract variations and terminations.     

While the new regime under the Act mirrors many of the underlying themes of the current procurement regulations, it does introduce some important changes to the landscape for issuing a procurement challenge. This article summarises important aspects of the Act that will be relevant to suppliers contemplating challenging procurement decisions which fall under the Act. We have addressed five key areas below:

1. Obligations owed to suppliers. Important changes have been made to the scope of an authority’s duties, only some of which are enforceable in civil proceedings, and we question if the “sufficiently serious” test will survive; 
   
2. Contract award notices and assessment summaries. The information that authorities must provide to tenderers has changed, with the loss of the “relative advantage” approach;  
   
3. Standstill period and automatic suspension. The length of the standstill period has been re-cast. Authorities will now only be prevented from entering into the contract if the challenge has been made before the standstill period ends, and a new test has been introduced for the lifting of the automatic suspension;
   
4. Remedies. New “set aside” conditions have been introduced, which are broadly similar to the “ineffectiveness” grounds; and
   
5. Time limits for commencing proceedings. These are broadly unaffected relative to the current position.
   

(1) Obligations owed to suppliers 

• Under the present regulations, contracting authorities are under an obligation to treat suppliers equally and without discrimination and to act in a transparent and proportionate manner. While using slightly different wording the Act imposes similar obligations requiring contracting authorities to treat suppliers “the same unless a difference between suppliers justifies different treatment”. If different treatment is justified the authority must take steps to ensure that it does not put the supplier at…