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Some important and immediate changes to the public procurement regime, effective immediately

Published on June 6, 2023 by Christopher Brennan, Alison Richards, Alexi Markham, Simon Harris, Sarah Higgins and Sonya Clarke

Some important and immediate changes to the public procurement regime, effective immediately

Procurement Policy Note 05/23 heralds three important changes to the public procurement regime. The changes affect procurement by all bodies who are subject to the UK’s public procurement regime, but not to contracting authorities whose functions are wholly or mainly Scottish, Welsh and Northern Irish devolved functions.

The changes have been introduced in light of the requirements of the UK’s new Free Trade Agreements (FTAs) with Australia and New Zealand, but are not confined to use in procurements involving suppliers from those two countries. Instead, they apply right across public procurement.

They are implemented within the public procurement regime by the Public Procurement (International Trade Agreements) (Amendment) Regulations 2023, which are now in force (these Regulations entered into force on 25 May 2023). Accordingly, the changes – which affect above-threshold procurements governed by the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016 and the Concession Contracts Regulations 2016 – apply to new procurements with immediate effect.

The three key changes are as follows:

  1. Where the value of a contract cannot be estimated, contracting authorities must treat it as being equal to the relevant threshold, and therefore apply the full regime.
  2. In some situations sub-central contracting authorities and utilities could previously use a Prior Information Notice or Periodic Indicative Notice (instead of a Contract Notice) as a call for competition. This change means they are no longer allowed to do this.
  3. The change introduces provisions which ensure that procurers cannot terminate awarded contracts to avoid international obligations. The rules already contain similar rules to prevent procurers from circumvent in the rules through the use of options, contract modifications, or cancellation.

For further information please speak to our procurement law team.

About the author(s)

Photo of Christopher Brennan
Christopher Brennan
Legal Director at Gowling WLG | View Profile | See recent posts

Chris is a leading lawyer in public procurement. He brings nearly two decades of experience in procurement across diverse sectors including central and local government, construction, developments and infrastructure, defence, health, education, the regulated industries and utilities.

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Alison Richards
View Alison's profile | See recent posts
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    AI Procurement Toolkit published by the World Economic Forum
Photo of Alexi Markham
Alexi Markham
Partner at Gowling WLG | See recent posts

Alexi Markham is a London based partner who specialises in advising Government Departments, wider public sector bodies and private companies on their commercial contracts and procurements.

    This author does not have any more posts.
Photo of Simon Harris
Simon Harris
Associate at Gowling WLG | See recent posts

Simon Harris is a Birmingham-based Associate in the Commercial, IT and Outsourcing team, who specialises in major public sector procurement projects.

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Photo of Sarah Higgins
Sarah Higgins
Senior Associate at Gowling WLG | See recent posts

Sarah Higgins is a senior associate at Gowling WLG.

    This author does not have any more posts.
Photo of Sonya Clarke
Sonya Clarke
Principal Associate at Gowling WLG | See recent posts

Sonya is a commercial contracts lawyer working primarily with central government departments, local authorities and other public sector clients.

    This author does not have any more posts.

Filed Under: News Tagged With: Public Procurement

Views expressed in this blog do not necessarily reflect those of Gowling WLG.

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LoupedIn is the Official Gowling WLG Blog. Gowling WLG is an international law firm comprising the members of Gowling WLG International Limited, an English Company Limited by Guarantee, and their respective affiliates. Each member and affiliate is an autonomous and independent entity. Gowling WLG International Limited promotes, facilitates and co-ordinates the activities of its members but does not itself provide services to clients. Our structure is explained in more detail on our Legal Information page.

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