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:
- 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.
- 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.
- 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)
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.
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.
Sarah Higgins is a senior associate at Gowling WLG.