The Procurement Act 2023 (PA23) is expected to come into force in October 2024. In preparation for this, a second tranche of technical guidance has been published by Cabinet Office. In this insight we summarise the key points to be aware of.

What is the technical guidance?

The Cabinet Office is preparing guidance which will help prepare for the implementation of the PA23 which can be found here.

The guidance is being rolled out in tranches with the second tranche published on 15 April, covering five areas:

• National Procurement Policy Statement (NPPS)
• pipeline notices
• planned procurement notices   
• Preliminary Market Engagement (PME)
• technical specifications.

We have set out some of the headlines from the latest five guidance notes below.

National Procurement Policy Statement (NPPS)

The guidance highlights the new statutory obligation for a contracting authority (CA) to consider whether its procurement can contribute to the priorities set out in the NPPS. The importance of record-keeping is emphasised.

Pipeline notices

The guidance explains the requirements for this new mandatory notice which will be triggered where a CA anticipates that it will spend more than £100m on contracts in the forthcoming financial year.

If this threshold is met, a “pipeline notice” must be published which sets out the details of all contracts with a value over £2m in respect of which the CA anticipates it will publish a tender notice or transparency notice in the next 18 month period.

The first pipeline notices will need to be published (where applicable to the CA) within 56 days of 1 April 2025 (so by 26 May 2025).

Planned procurement notices

This new voluntary notice is explained in the guidance; it is designed to give the market advance notice of a procurement so it can have the maximum amount of time to prepare.

The “planned procurement notice” can be used to decrease the tendering period but only where it is published at least 40 days and not more than 12 months before the tender notice (advertising the contract) is published. This is reminiscent of the old PIN used under the Public Contracts Regulations 2015.

There is some useful guidance about when it is appropriate to decrease the tendering period and what to do if your procurement changes after publishing the planned procurement notice.

Preliminary Market Engagement (PME)

This explains the importance of PME as part of the procurement, particularly under the new regime where CAs will have flexibility to design their own procurement procedure.

The key change noted in the guidance is the new PME Notice. In most cases where a CA is going to carry out PME, the PME notice would be published before the PME is carried out to invite suppliers to take part in the process. This is not dissimilar to the current approach. However, under the PA23, if PME is to be carried out, it is mandatory for the CA to either publish a PME before the tender notice or explain in the tender notice why this has not been done.

The guidance also looks at how to ensure suppliers are not put at an unfair advantage and how to avoid distorting competition, including sharing information.

Technical specifications

The guidance explains the requirement to refer to performance or functional requirements unless it is not appropriate to do so. It also details how to refer to standards and how a CA can satisfy itself that standards are met.

Next steps for the guidance

There will be more tranches of guidance to come, with the full suite to be published by the end of June 2024.

How Capsticks can help

Capsticks acts for both contracting authorities and bidders. With extensive knowledge of procurement law, our specialist team are always on hand to review to support you with all aspects of the procurement process and how to get ready for the new Procurement Act.

Please speak to Katrina Day or Mary Mundy to find out more about how Capsticks can help.