Procurement Act – new notice requirements guidance
To achieve transparency, the new Procurement Act (when the Bill is given Royal Assent and comes into force, which is likely to be no sooner than October 2024) will require contracting authorities to publish additional notices at different parts of the procurement process. The Welsh Government has created a helpful flowchart to enable stakeholders understand the different types of notices required at different parts of the procurement process.
The flowchart compliments the pre-implementation checklist which Welsh Government published in October 2022.
Whilst published by Welsh Government, the notice flowchart does not contain any provisions relating to Wales only and therefore is a useful guide for all contracting authorities who will be subject to the Procurement Act. A brief summary of the notice requirements is included below.
The Cabinet Office has also published draft regulations as part of its consultation which intends to put the meat on the bones of the Procurement Act 2023 and sets out the information that will need to be included in the respective notices. The consultation has now closed and we look forward to further details in due course.
Should your organisation wish to receive training on the requirements of the Procurement Act, then please do not hesitate to contact Tomos Lewis to discuss how Blake Morgan can help.
Preparation stage
- Pipeline Notice: if a contracting authority considers they will pay >£100 million for contracts for goods and services in the upcoming financial year, then the publication of a pipeline notice 56 days prior to commencement of the financial year (being the 1st of April) setting out information about public contracts with an estimated value of over £2million each is mandatory.
- Planned Procurement Notice: this is an optional notice intending to show that a public body intends to publish a tender notice in the future.
- Preliminary Market Engagement Notice: contracting authorities are not obliged to perform Prior Market Engagement but where they do, they will be required to publish a Prior Market Engagement Notice or provide reasons for conducting Prior Market Engagement in the tender notice. This is a change from the current Public Contracts Regulations 2015 which does not require (but allows) the publication of such notice.
Procurement stage
- Tender Notice: where a contracting authority is planning to award a public contract via a competitive procedure, then tender notice will be mandatory and commences the procedure. This is the equivalent to the current contract notice.
- Transparency Notice: this is mandatory if there is a direct award made by a public body and replaces the current voluntary transparency notice.
- Below Threshold Tender Notice: this is mandatory where the contracting authority intend to advertise for the purpose of inviting tenders for a below threshold procurement (being a contract with estimated value of not less than £12,000 (inc. VAT) for central government authorities and not less than £30,000 (inc. VAT) for all other contracting authorities) and must be published prior to advertising a notifiable below threshold contract.
- Procurement Termination Notice: these do not extend to private utilities or contracts awarded under section 41 as specified in paragraph 15 of Schedule 5, however, they are mandatory for public contracts where after publishing a tender or transparency notice the contracting authority decides not to award the contract.
Contract award
- Contract Award Notice: this is published at conclusion of procurement and before entering into the contract and sets out the intention to enter into a public contract – this is mandatory. It should be noted that contracting authorities will be required to give an assessment summary (the equivalent to the current standstill letters, albeit with different requirements) to each supplier that submitted a tender before publishing the contract award notice
- Contract Details Notice: this shows that a contract has been entered into and is mandatory. In addition, a copy of the redacted version of the contract will need to be included where there is a call-off contract over £5 million procured under a reserved procurement arrangement.
- Procurement Termination Notice: this is a new requirement where a contracting authority is now required to publish a notice where it decides to abandon a procurement. Such a notice must be published as soon as reasonably practicable after making the decision.
- Below-Threshold Contract Details Notice: where a contracting authority enters into a notifiable below-threshold contract (being a contract with estimated value of not less than £12,000 (inc. VAT) for central government authorities and not less than £30,000 (inc. VAT) for all other contracting authorities) then the contracting authority must publish a contract details notice as soon as reasonably practicable after entering into the contract
- Publication of contract: contracting authorities who enter into a public contract with a value of more than £5m will have to publish a copy of the contract within 90 days of entering into the contract (or 180 days if the contract is light touch). However, Welsh contracting authorities are required to publish contracts only if the contract was awarded as part of a procurement under a reserved procurement arrangement (i.e a framework or Dynamic Market awarded by an English / non-devolved contracting authority) and the value of the call off is over £5m.
Contract performance management
- Contract Change Notice: mandatory where an above-threshold modification is made to the contract. This is a wider requirement compared to the Public Contracts Regulations 2015 which only require contract modification notices in limited circumstances. No contract change notice is required to be published where the modification do not increase or decrease the value of the contract (a) in the case of supply of goods and services contracts, by 10% or less or (b) in the case of works contracts, 15% or less.
- Contract Termination Notice: this is mandatory and must be published within 30 days of contract termination date, (whether termination is due to expiry or otherwise). This is a new requirement.
- Payments Compliance Notes: this is mandatory and must show the contracting authorities compliance with 30-day payment terms. Such notices must be published within 30 days of the last reporting period (being each 6 month period on either the 31 March or 30 September)
- Contract Performance Notice: with the exception of private utilities, (where no contract performance notice will be required), where a contracting authority has included KPIs in the contract and the contract has a value of over £5million then the contracting authority must at least once every year assess the suppliers performance against those KPIs and publish information about the suppliers performance. In addition, contracting authorities will be required to share information about breaches of contract or poor performance (including those which result in termination, payment of damages or a settlement agreement) by the supplier within 30 days of the breach or poor performance.
Relevant at more than one part of the procurement process
- Dynamic Market Notices: this notice mandatory where a dynamic market will be publicised, established, awarded or where it will be terminated. A Dynamic Market Notice will get updated as it passes each stage. No Dynamic Market Notice is required to be provided for a termination if the dynamic market is established by a private utility.
Comment
The additional notices requirements of the new regime will clearly require additional work for contracting public bodies will need to prepare in advance in order to ensure that they are able to fulfil their increased obligations.
Please contact one of our experts if you have any queries on upcoming changes to the procurement law and how this may impact your organisation.
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