Public procurement – what is coming up in 2023?

Next year will see the biggest changes to public procurement law in more than a decade when the Procurement Bill 2022 passes into law (this is currently expected to be sometime around mid-2023). 

The Bill has already been subject to numerous amendments, and more are likely before the Bill receives Royal Assent. However, we do now have from the Bill a good idea as to how and which of the ideas and reforms contained in Procurement Green Paper, published by the Government in December 2020, will be implemented.  

So, what’s changing and what’s not changing? 

• The concept of the ‘most economically advantageous tender’(MEAT) is being replaced with simply the ‘most advantageous tender’ (MAT). This is intended to give contracting authorities more scope to consider factors other than price in their assessment of tenders, for example social value. 
• There will be a new central debarment register which enables bidders to be excluded from participating in public tenders for prior poor performance. 
• The principles of equal treatment and non-discrimination will be retained. Contracting authorities must take reasonable steps to ensure they do not put a supplier at an unfair advantage or disadvantage and must not discriminate against suppliers from a ‘Treaty state’ – this will mean a country which has an international procurement agreement with the UK. 
• However, the principles of transparency and proportionality do not appear in the Bill. Instead, the Bill introduces a number of key procurement ‘Objectives’, which require all contracting authorities to have regard to: 

1. Delivering value for money; 
2. Maximising public benefit; 
3. Sharing information; and 
4. Acting with integrity. 

• Contracting authorities will still have an obligation to publish a contract award notice informing bidders of the outcome of a tender. However, this will also now be accompanied by an ‘Assessment Summary’ for each bidder, which provides details on the contracting authority’s assessment of that bidder’s bid, and the ‘most advantageous tender’ submitted. 
• Contracting authorities will still be obliged to hold standstill periods – although the duration of the standstill period is changing from ten (calendar) days to eight working days beginning on the day on which a contract award notice is published. 
• The automatic suspension, and the power of the courts to lift it, is staying. However, the American Cyanamid test will no longer apply to applications to lift the automatic suspension. Instead, a new test will require the court to have regard to the public interest in public contracts being awarded lawfully, avoiding delay in the supply of public goods and services, the interests of suppliers (including whether damages are an adequate remedy), and any other matter the court considers appropriate. Whether this test will produce results any different to the current American Cyanamid test remains to be seen.  
• Damages will remain available as a remedy. The Bill does not implement the proposal contained in the Green Paper to cap damages awards. 

Overall, while bringing some welcome simplification of the public procurement regime, the Bill does not make as many sweeping changes as the Green Paper may have envisaged.  

We will continue to monitor the Bill as it passes through Parliament and will publish a further update in due course. In the meantime, the Public Contracts Regulations 2015 continue to apply. 

Check out our other Public Procurement resources here.