Citation, extent and interpretation

1.—(1) These Regulations may be cited as the Procurement Act 2023 (Commencement No. 3 and Transitional and Saving Provisions) Regulations 2024.

(2) These Regulations extend to England and Wales, Scotland and Northern Ireland.

(3) In these Regulations—

“ the Act” means the Procurement Act 2023;

“ the 2011 Regulations” means the Defence and Security Public Contracts Regulations 2011( 2);

“ the 2015 Regulations” means the Public Contracts Regulations 2015( 3);

“ the 2016 CC Regulations” means the Concession Contract Regulations 2016( 4);

“ the 2016 UC Regulations” means the Utilities Contracts Regulations 2016( 5).

Provisions coming into force

2.—(1) Subsections (2), (3) and (4) of section 115 of the Act come into force the day after the day on which these Regulations are made.

(2) The provisions of the Act set out in the Schedule come into force on 28th October 2024.

Saving provisions relating to the 2011 Regulations

3.—(1) Despite the revocation of the 2011 Regulations by section 119(1) of, and paragraph 4 of Schedule 11 to, the Act, those Regulations continue to apply in respect of procurement procedures, contracts and framework agreements in any of the circumstances described in paragraph (2).

(2) The circumstances are that, with reference to the 2011 Regulations, before 28th October 2024—

(a) a contracting authority has awarded the contract or concluded the framework agreement;

(b) a contracting authority has sought offers in relation to a proposed Part B services contract or a framework agreement in respect of which only Part B services contracts can be based or awarded, other than one excluded by virtue of regulation 7 or 9, for any services referred to in sub-paragraph (c), (d) or (e) of regulation 6(1);

(c) a contracting authority has contacted an economic operator in order to commence the negotiated procedure without prior publication of a contract notice in accordance with regulations 16(1) and 18(1), (2), (9) and (10);

(d) a contracting authority using the restricted procedure has submitted a contract notice inviting requests to be selected to tender in accordance with regulation 17(2);

(e) a contracting authority using the negotiated procedure has submitted a contract notice inviting requests to be selected to negotiate in accordance with regulation 18(3);

(f) a contracting authority using the competitive dialogue procedure has submitted a contract notice inviting requests to participate in accordance with regulation 19(4).

(3) Where the 2011 Regulations continue to apply in accordance with paragraph (1), the Act does not apply.

(4) Terms used in this regulation have the same meaning as in the 2011 Regulations( 6) as they had effect immediately before 28th October 2024.

Transitional provisions relating to repeat services or works under a contract awarded under the 2011 Regulations

4.—(1) This regulation applies for the purposes of determining whether a contracting authority may award a public contract directly under section 41 of the Act (direct award in special cases) in a case where—

(a) the public contract concerns the supply of services or works by the existing supplier that are a repetition of existing services or works, and

(b) the existing services or works were supplied under a contract or framework agreement that was awarded in accordance with the 2011 Regulations.

(2) The direct award justification in paragraph 8 of Schedule 5 to the Act (direct award justifications) has effect as if—

(a) in the words before paragraph (a), “goods,”, in each place it occurs, were omitted,

(b) in paragraph (a)—

(i) “goods,” and “public” were omitted, and

(ii) for “in accordance with a competitive tendering procedure” there were substituted “otherwise than in accordance with regulation 16 of the Defence and Security Public Contracts Regulations 2011”,

(c) for paragraph (b) there were substituted—

“(b) a contract notice in respect of that earlier contract or framework agreement contained a statement complying with the requirements of regulation 16(6)(a) of the Defence and Security Public Contracts Regulations 2011. ”, and

(d) in paragraph 9 of that Schedule—

(i) for “paragraphs 7 and” there were substituted “paragraph”, and

(ii) “goods,” in each place it occurs in the first definition, and where it occurs in the second definition, were omitted.

(3) In paragraph (1)—

“ existing services or works” means services or works already supplied, or contracted to be supplied, to the contracting authority;

“ existing supplier” means the supplier that has already supplied, or contracted to supply, the existing services or works.

Saving provisions relating to the 2015 Regulations

5.—(1) Despite the revocation of the 2015 Regulations by section 119(1) of, and paragraph 5 of Schedule 11 to, the Act, those Regulations continue to apply, as modified by paragraph (4)(b) and (c), in respect of procurement procedures, contracts, framework agreements and dynamic purchasing systems in any of the circumstances described in paragraphs (2) and (3).

(2) The circumstances in this paragraph are that, with reference to the 2015 Regulations, before 26th May 2023, a sub-central contracting authority submitted for publication in accordance with regulation 51 (publication on the UK e-notification service) a prior information notice as a call for competition in accordance with regulation 26(9).

(3) The circumstances in this paragraph are that, with reference to the 2015 Regulations, before 28th October 2024—

(a) a contracting authority has awarded the contract, concluded the framework agreement or established the dynamic purchasing system;

(b) a contracting authority has contacted an economic operator in order to commence the negotiated procedure without prior publication in any of the specific cases and circumstances set out in regulation 32;

(c) either—

(i) a contract notice required by regulation 26(8) or 75(1)(a) (publication of notices: public contracts for social and other specific services), or

(ii) a contest notice required by regulation 79 (notices)

has been submitted for publication in accordance with regulation 51;

(d) a contracting authority has had published on the UK e-notification service a voluntary transparency notice expressing its intention to enter into a contract in accordance with regulation 99(3)(b) (grounds for ineffectiveness: one of the conditions for the non-application of the first ground);

(e) a contracting authority has published information about a contract award opportunity on Contracts Finder in accordance with regulation 110(2) (publication of contract award opportunities on Contracts Finder).

(4) Where the 2015 Regulations continue to apply in accordance with paragraph (1)—

(a) the Act does not apply;

(b) the period of validity of a dynamic purchasing system under regulation 34 of those Regulations—

(i) may not be changed after 27th October 2025, and

(ii) expires (if it has not already done so) at the end of 27th October 2028;

(c) regulation 113 of those Regulations (payment of undisputed invoices within 30 days by contracting authorities, contractors and subcontractors) is to be read as if—

(i) in paragraph (7), in the words before sub-paragraph (a)—

(aa) for “Every financial year” there were substituted “In every period, the first being the period beginning with 28th October 2024 and ending with 31st March 2025 and subsequent periods being each subsequent successive period of six months”, and

(bb) after “preceding”, for “financial year” there were substituted “period”,

(ii) in paragraph (8)(b), for “financial year” there were substituted “period”, and

(iii) in paragraph (11), the definition of “financial year” were omitted.

(5) Terms used in this regulation have the same meaning as in the 2015 Regulations( 7) as they had effect immediately before 28th October 2024.

Transitional provisions relating to repeat services or works supplied under a contract awarded under the 2015 Regulations

6.—(1) This regulation applies for the purposes of determining whether a contracting authority may award a public contract directly under section 41 of the Act (direct award in special cases) in a case where—

(a) the public contract concerns the supply of services or works by the existing supplier that are similar to existing services or works, and

(b) the existing services or works were supplied under a public contract or framework agreement that was awarded in accordance with the 2015 Regulations.

(2) The direct award justification in paragraph 8 of Schedule 5 to the Act (direct award justifications) has effect as if—

(a) in the words before paragraph (a), “goods,”, in each place it occurs, were omitted,

(b) in paragraph (a)—

(i) “goods,” were omitted, and

(ii) for “a competitive tendering procedure” there were substituted “regulation 26(1) and (2) of the Public Contracts Regulations 2015”,

(c) for paragraph (b) there were substituted—

“(b) there was a disclosure as soon as that earlier contract was put up for tender that met the requirements of regulation 32(11) of the Public Contracts Regulations 2015. ”, and

(d) in paragraph 9 of that Schedule—

(i) for “paragraphs 7 and” there were substituted “paragraph”, and

(ii) “goods,” in each place it occurs in the first definition, and where it occurs in the second definition were omitted.

(3) In paragraph (1)—

“ existing services or works” means services or works already supplied, or contracted to be supplied, to the contracting authority;

“ existing supplier” means the supplier that has already supplied, or contracted to supply, the existing services or works.

Saving provisions relating to the 2016 CC Regulations

7.—(1) Despite the revocation of the 2016 CC Regulations by section 119(1) of, and paragraph 6 of Schedule 11 to, the Act, those Regulations continue to apply in respect of procurement procedures and contracts where, with reference to those Regulations, before 28th October 2024, a contracting authority has—

(a) awarded the contract, or

(b) submitted—

(i) a concession notice required by regulation 31(1), or

(ii) a prior information notice required by regulation 31(3),

for publication in accordance with regulation 33(1) (form and manner of publication of notices).

(2) Where the 2016 CC Regulations continue to apply in accordance with paragraph (1), the Act does not apply.

(3) Terms used in paragraph (1) have the same meaning as in the 2016 CC Regulations( 8) as they had effect immediately before 28th October 2024.

Saving provisions relating to the 2016 UC Regulations

8.—(1) Despite the revocation of the 2016 UC Regulations by section 119(1) of, and paragraph 7 of Schedule 11 to, the Act, those Regulations continue to apply in respect of procurement procedures, contracts, framework agreements and dynamic purchasing systems in any of the circumstances described in paragraphs (2) and (3).

(2) The circumstances in this paragraph are that, with reference to the 2016 UC Regulations, before 26th May 2023, a utility submitted for publication in accordance with regulation 71 (publication on the UK e-notification service) a periodic indicative notice as a call for competition in accordance with regulation 44(4)(a)( 9).

(3) The circumstances in this paragraph are that, with reference to the 2016 UC Regulations, before 28th October 2024—

(a) a utility has awarded the contract, concluded the framework agreement or established the dynamic purchasing system;

(b) a utility has contacted an economic operator in respect of a proposed contract to which regulation 33 (contracts subject to special arrangements) applies;

(c) a utility has contacted an economic operator to commence the negotiated procedure without prior call for competition in any of the cases set out in regulation 50 (use of the negotiated procedure without prior call for competition);

(d) one of the following notices has been submitted for publication in accordance with regulation 71(1) (publication on the UK e-notification service)—

(i) a notice on the existence of a qualification system required by regulation 68;

(ii) a contract notice required by regulation 69;

(iii) a contest notice required by regulation 95.

(4) Where the 2016 UC Regulations continue to apply in accordance with paragraph (1)—

(a) the Act does not apply;

(b) the period of validity of a dynamic purchasing system under regulation 52 of the 2016 UC Regulations—

(i) may not be changed after 27th October 2025, and

(ii) expires (if it has not already done so) at the end of 27th October 2028;

(c) the period of validity of a qualification system under regulation 68 of the 2016 UC Regulations—

(i) may not be changed after 27th October 2025, and

(ii) expires (if it has not already done so) at the end of 27th October 2028.

(5) Terms used in this regulation have the same meaning as in the 2016 UC Regulations( 10) as they had effect immediately before 28th October 2024.

Transitional provisions relating to repeat services or works previously supplied under a contract awarded under the 2016 UC Regulations

9.—(1) This regulation applies for the purposes of determining whether a contracting authority may award a public contract directly under section 41 of the Act (direct award in special cases) in a case where—

(a) the public contract concerns the supply of services or works by the existing supplier that are similar to existing services or works, and

(b) the existing services or works were supplied under a public contract of framework agreement that was awarded in accordance with the 2016 UC Regulations.

(2) The direct award justification in paragraph 8 of Schedule 5 to the Act (direct award justifications) has effect as if—

(a) in the words before paragraph (a), “goods,”, in each place it occurs, were omitted,

(b) in paragraph (a)—

(i) “goods,” were omitted;

(ii) for “a competitive tendering procedure” there were substituted “regulation 44(1) and (2) of the Utilities Contracts Regulations 2016”,

(c) for paragraph (b) there were substituted—

“(b) there was a disclosure as soon as that earlier contract was put up for tender that met the requirements of regulation 50(4)(b) of the Utilities Contracts Regulations 2016. ”, and

(d) in paragraph 9 of that Schedule—

(i) for “paragraphs 7 and” there were substituted “paragraph”, and

(ii) “goods,”, in each place it occurs in the first definition, and where it occurs in the second definition, were omitted.

(3) In paragraph (1)—

“ existing services or works” means services or works already supplied, or contracted to be supplied, to the utility;

“ existing supplier” means the supplier that has already supplied, or contracted to supply, the existing services or works.

Regulation 2(2)

Schedule Provisions of the Procurement Act 2023 coming into force on 28th October 2024

• Section 1 (procurement and covered procurement).

• Section 2 (contracting authorities).

• In section 3 (public contracts), subsections (2), (3) and (4).

• Section 4 (valuation of contracts).

• Section 5 (mixed procurement: above and below threshold).

• Section 7 (defence and security contracts)

• Section 8 (concession contracts).

• Section 10 (mixed procurement: special regime contracts).

• Section 11 (covered procurement only in accordance with this Act).

• Section 12 (covered procurement: objectives).

• Section 15 (planned procurement notices).

• Section 16 (preliminary market engagement).

• Section 17 (preliminary market engagement notices).

• Section 18 (duty to consider lots).

• Section 19 (award of public contracts following a competitive tendering procedure).

• Section 20 (competitive tendering procedures).

• Section 21 (tender notices and associated tender documents).

• Section 22 (conditions of participation).

• Section 23 (award criteria).

• Section 24 (refining award criteria).

• Section 25 (sub-contracting specifications).

• Section 26 (excluding suppliers from a competitive award).

• Section 27 (excluding suppliers from a competitive flexible procedure).

• Section 28 (excluding suppliers by reference to sub-contractors).

• Section 29 (excluding a supplier that is a threat to national security).

• Section 30 (excluding suppliers for improper behaviour).

• Section 31 (modifying a section 19 procurement).

• Section 32 (reserving contracts to supported employment providers).

• In section 33 (reserving contracts to public service mutuals), subsections (1) to (6).

• Section 34 (competitive award by reference to dynamic markets).

• Section 35 (dynamic markets: establishment).

• Section 36 (dynamic markets: membership).

• Section 37 (dynamic markets: removing members from the market).

• Section 38 (dynamic markets: fees).

• Section 39 (dynamic market notices).

• Section 40 (qualifying utilities dynamic market notices: no duty to publish a tender notice).

• Section 41 (direct award in special cases).

• Section 42 (direct award to protect life, etc.).

• Section 43 (switching to direct award).

• Section 44 (transparency notices).

• Section 45 (frameworks).

• Section 46 (frameworks: competitive selection process).

• Section 47 (frameworks: maximum term).

• Section 48 (frameworks: implied terms).

• Section 49 (open frameworks).

• Section 50 (contract award notices and assessment summaries).

• Section 51 (standstill periods on the award of contracts).

• Section 52 (key performance indicators).

• Section 53 (contract details notices and publiction of contracts).

• Section 54 (time limits).

• Section 55 (procurement termination notices).

• Section 56 (technical specifications).

• Section 57 (meaning of excluded and excludable supplier).

• Section 58 (considering whether a supplier is excluded or excludable).

• Section 59 (notification of exclusion of supplier).

• Section 60 (investigations of supplier: exclusion grounds).

• Section 61 (investigations under section 60: reports).

• Section 62 (debarment list).

• Section 63 (debarment decisions: interim relief).

• Section 64 (debarment list: application for removal).

• Section 65 (debarment decisions: appeals).

• Section 66 (debarment proceedings and closed material procedure).

• Section 67 (electronic invoicing: implied term).

• Section 68 (implied payment terms in public contracts).

• Section 72 (sub-contracting: directions).

• Section 73 (implied payment terms in sub-contracts).

• Section 74 (modifying a public contract).

• Section 75 (contract change notices).

• Section 76 (voluntary standstill period on the modification of contracts).

• Section 77 (publication of modifications).

• Section 78 (implied right to terminate public contracts).

• Section 79 (terminating public contracts: national security).

• Section 80 (contract termination notices).

• Section 81 (conflicts of interest: duty to identify).

• Section 82 (conflicts of interest: duty to mitigate).

• Section 83 (conflicts assessments).

• Section 84 (regulated below-threshold contracts).

• Section 85 (regulated below-threshold contracts: procedure).

• Section 86 (regulated below-threshold contracts: duty to consider small and medium-sized enterprises).

• In section 87 (regulated below-threshold contracts: notices), subsections (1) to (6).

• Section 88 (regulated below-threshold contracts: implied payment terms).

• In section 89 (treaty state suppliers), subsections (2), (5) and (6).

• Section 90 (treaty state suppliers: non-discrimination).

• Section 92 (trade disputes).

• Section 94 (general exemptions from duties to publish or disclose information).

• In section 95 (notices, documents and information: regulations and online system), subsections (4) and (5).

• Section 96 (electronic communications).

• Section 98 (record-keeping).

• Section 99 (data protection).

• Section 100 (duties under this Act enforceable in civil proceedings).

• Section 101 (automatic suspension of the entry into or modification of contracts).

• Section 102 (interim remedies).

• Section 103 (pre-contractual remedies).

• Section 104 (post-contractual remedies).

• Section 105 (post-contractual remedies: set aside conditions).

• Section 106 (time limits on claims).

• Section 107 (Part 9 proceedings and closed material procedure).

• Section 108 (procurement investigations).

• Section 109 (recommendations following procurement investigations).

• Section 111 (guidance following procurement investigations).

• Section 112 (Northern Ireland department: restrictions on the exercise of powers).

• In section 116 (disapplication of duty in section 17 of the Local Government Act 1988), subsection (1).

• Section 118 (concurrent powers and the Government of Wales Act 2006).

• Section 119 (repeals etc.).

• Schedule 2, to the extent that it is not already in force.

• Schedule 3.

• Schedule 4, to the extent that it is not already in force.

• Schedule 5.

• Schedule 6.

• Schedule 7.

• Schedule 8.

• Schedule 11.

Explanatory Note

(This note is not part of the Regulations)

Regulation 2 commences provisions of the Procurement Act 2023 (“ the 2023 Act”). Regulation 2(1) commences, the day after the day on which these Regulations are made, subsections (2), (3) and (4) section 115 of the Act. These provisions allow the Scottish Ministers to apply devolved Scottish procurement legislation to contracting authorities regulated by the Act in certain circumstances. They will also allow the Scottish Ministers to disapply the same legislation where a devolved Scottish contracting authority falls to be regulated by the 2023 Act, following forthcoming amendment of the 2023 Act under section 115(1). The same provisions also allow a Minister of the Crown to amend the application of the 2023 Act in order to facilitate intra-UK procurements governed by devolved Scottish procurement arrangements. Regulation 2(2) brings into force almost all provisions of the 2023 Act not previously commenced, with the effect that, from 28th October 2024, those who fall within the scope of the 2023 Act will be regulated under the new regime. A number of provisions of the 2023 Act were commenced in order to make secondary legislation by S.I.s 2024/61and 2024/361, as set out in the table below.

Regulation 3 is a saving provision which sets out when the Defence and Security Public Contracts Regulations 2011 (“ the 2011 Regulations”) will continue to apply despite those Regulations being revoked by paragraph 4 of Schedule 11 to the 2023 Act (commenced by this instrument). Regulation 4 is a transitional provision in respect of the direct award in special cases of public contracts under section 41 of the 2023 Act where the contract is a repetition of an existing contract procured under the 2011 Regulations.

Regulation 5 is a saving provision which sets out when the Public Contracts Regulations 2015 (“ the 2015 Regulations”) will continue to apply despite those Regulations being revoked by paragraph 5 of Schedule 11 to the 2023 Act (commenced by this instrument). Regulation 5 also includes a transitional provision, where the 2015 Regulations continue to apply, in respect of the period of validity of dynamic purchasing systems (established under regulation 34 of the 2015 Regulations) and the publication of payment information statistics in accordance with regulation 113(7) of the 2015 Regulations.

Regulation 6 is a transitional provision in respect of the direct award in special cases of public contracts under section 41 of the 2023 Act where the contract is a repetition of an existing contract procured under the 2015 Regulations.

Regulation 7 is a saving provision which sets out when the Concession Contracts Regulations 2016 will continue to apply despite those Regulations being revoked by paragraph 6 of Schedule 11 to the 2023 Act (commenced by this instrument).

Regulation 8 is a saving provision which sets out when the Utilities Contracts Regulations 2016 (“ the 2016 UC Regulations”) will continue to apply despite those Regulations being revoked by paragraph 7 of Schedule 11 to the 2023 Act (commenced by this instrument). Regulation 8 also provides a transitional provision, where the 2016 UC Regulations continue to apply, in respect of the periods of validity of dynamic purchasing systems (established under regulation 52 of the 2016 UC Regulations) and qualification systems (established under regulation 68 of the 2016 UC Regulations). Regulation 9 is a transitional provision in respect of the direct award in special cases of public contracts under section 41 of the 2023 Act where the contract is a repetition of an existing contract procured under the 2016 UC Regulations.

NOTE AS TO EARLIER COMMENCEMENT Regulations

(This note is not part of the Regulations)

The following provisions of the Procurement Act 2023 have been brought into force by commencement Regulations made before the date of these Regulations.