Procurement Act 2023: How’s it going so far?
Approaching a year since a new post-Brexit procurement regime went live, Bradley Martin, partner at UK and Ireland law firm Browne Jacobson, reflects on emerging themes.
The implementation of the Procurement Act 2023 on 24 February 2025 marked the most significant change to the public procurement landscape in the UK in more than a decade.
It aims to transform how the public sector purchases works, goods and services, by delivering better value for money and public benefit through increased flexibility and transparency.
We surveyed our public sector clients and their suppliers – to gather their initial observations and experiences since the Act went live. Here’s what we’ve found.
Preserving familiarity
A significant proportion of our clients expressed they have not yet had much interaction with the Act. This tells its own story of cautious adoption.
Before 24 February, there was a noticeable rush of new procurements being commenced before the Act went live. This has meant, due to the transitional arrangements, that these procurements are still covered by the preceding procurement regime – e.g. the Public Contracts Regulations 2015 (PCR). Considering this was introduced a decade ago, organisations are naturally more comfortable with this.
There has been an understandable reluctance from some contracting authorities to be the ‘test case’ for procurements under the Act or to be managing procurements covered by two different regimes.
We have witnessed some reliance on extending contracts procured before the Act went live. In addition, many respondents stated they have been relying on frameworks procured under the PCR to call-off works and services since the Act went live.
Disparities in levels of preparation for the Act were also clear from our research. Some respondents proactively updated their templates and internal procedures in advance of the implementation date, while others admitted they’re yet to make any changes.
We encourage contracting authorities and suppliers alike to make the most of the resources available, and ensure the Act is embedded into their processes and internal governance procedures.
Reluctance to embrace the unknown
For those who have conducted a procurement under the Act, a common theme was designing the competitive flexible procedure in a way that mirrors established procedures, such as structuring their procurement to follow the PCR’s competitive dialogue procedure.
The competitive flexible procedure empowers contracting authorities to tailor a procurement process to their specific needs and best practice recommended by the market. Embracing this change to design their own approach may begin with small variations or innovations.
Similarly, respondents did not express much desire to establish open frameworks or dynamic markets – two new developments in the Act. There was a general sentiment that open frameworks may create additional risk, outweighing any advantage they may bring.
What is working well?
Despite natural hesitance to embrace the full flexibilities and developments of the Act, many organisations believe increased flexibility is a positive.
In particular, the light touch regime was cited as an example of significant extra flexibility afforded to contracting authorities. Other respondents remarked positively on the increased transparency and accountability, particularly in regard to post-award contract management.
There is general sentiment that while contract management provisions will increase administrative pressure on contracting authorities, they should result in better supplier performance and value for money for the public sector.
Where are there reservations?
Some areas of the Act have been more challenging. One example frequently mentioned by respondents was the approach to pipeline notices. It was originally understood that such notices would be published annually and comprise a list of all £2m-plus contracts a contracting authority expected to procure in the forthcoming 18-month period.
However, guidance later confirmed these notices were required for each particular procurement. This led to a scramble to publish individual notices before the 26 May deadline, resulting in notices lacking sufficient detail or insight.
Some organisations have experienced difficulties with the Central Digital Platform’s functionality, while there are general concerns around the extra administrative burden created by the Act’s notices and contract management requirements for teams with stretched resource.
We have also been aware of some uncertainty regarding preliminary market engagement (PME). Although not mandatory, the Cabinet Office strongly encourages contracting authorities to use PME to take soundings on their intentions with procurement exercises from the market.
Contracting authorities should seek to ensure their procurement timetable accommodates PME, which is often very useful in early engagement with suppliers regarding proposed contract approaches, KPIs and structures for competitive flexible procedures.
What might be coming next?
The most eagerly awaited next step will be the first case litigated under the Act. We anticipate this will focus on assessment summaries, obligations under section 12, or an unlawful direct award of a contract.
Beyond this, we expect the outcome of the Cabinet Office’s consultation on proposed further reforms to the Act, which closed on 5 September, to be of interest.
Proposals under consultation include further support for SMEs and for public procurement to more explicitly contribute towards jobs, opportunities or skills creation. We also look forward to better understanding the role the Procurement Review Unit will play going forward.
