By Katherine Calder, Victoria Fletcher & Sarah Foster.
|Published 13 May 2026
Note: This is the third article in our own DACB series on the Procurement Act 2023, and a shortened version of an article first published in Local Government Lawyer on 1 April 2026
We are publishing a series of articles looking at 'The Procurement Act 2023 - one year on'. Throughout the series, we take an honest look at what has changed in procurement practice, what challenges are being considered and what is working well.
In this third article, we consider some of its practical impacts and implications of the Act sitting alongside the previous procurement regulations (the Public Contracts Regulations 2015 (PCRs), Concession Contracts Regulations 2016, Utilities Contracts Regulations 2016, and the Defence and Security Public Contracts Regulations 2011) and the Healthcare Services (Provider Selection Regime) Regulations 2023 (PSR).
The Act was planned to be “one source of truth” but the challenge for some authorities is to know what law applies, because at present it is not only the Act. Authorities need to be familiar with the Act and well as the regulations that applied to them before it came into force. The Act also has the Procurement Regulations 2024 sitting alongside it, together with number of Procurement Policy Notes and the Playbooks.
The Healthcare Services (Provider Selection Regime) Regulations 2023 may also apply when commissioning public health care services, with examples including substance misuse treatment services and school nursing services. Authorities therefore need to be aware of the PSR regime as well.
The previous regulations have not disappeared yet. Ongoing procurements that started under one of the sets of regulations (the PCRs, Concession Contracts Regulations 2016, Utilities Contracts Regulations 2016, and the Defence and Security Public Contracts Regulations 2011) continue under those regulations. The old regime continues to apply when using a framework or a dynamic purchasing system procured under the old regime. (It is important to note that the PSR applies to call-offs from frameworks procured under the PCRs where the purchase is subject to the PSR, so compliance with both the PCRs and PSR is required).
When modifying a contract, an authority needs to continue the regime under which it was procured. However, which regime applies if the call-off or modification is challenged? If a challenge is made, and it is asserted that a contracting authority cannot rely on the original procurement, is the claim under the previous Regulations as per the original procurement) or the Act (because the contract procured using the previous regulations cannot be relied upon)?
Claimants might be wise to frame their claim in the alternative referring to both regimes - but future articles will say more on the differences in remedies between the two regimes.
For NHS bodies and local authorities, the PSR may also apply when commissioning health care services. These authorities therefore need to be aware of the PSR regime as well.
An authority cannot choose to apply the Act or the PSR because it prefers one regime over the other. In the majority of cases the regime that applies will be easy to identify. However, it isn't always clear.
Case 10 from the Independent Patient Choice Panel - which concerned an adult and paediatric orthotics and wheelchair service - is a good example. On first glance this service is not under the PSR due to it not being listed in the PSR. However, the panel found the service was a PSR service, taking into account matters such as how referrals were made and CQC registration.
Another complexity involves contracts that are a mix of in‑scope healthcare services and services/goods subject to the Act. The PSR may only be used where the main subject matter of the contract is in-scope healthcare services and the authority is of the view that the out-of-scope elements could not be reasonably supplied under a separate contract. The main subject matter is determined by splitting the healthcare services from the non-healthcare services and determining which is greater. When considering the value split, an authority must be mindful of everything that is being delivered.
If uncertainty remains, is it safer to comply with the Act rather than the PSR on the basis the Act has a more robust regime? This sounds like a good idea but it raises many questions about enforcement and limitation periods for aggrieved suppliers. If the PSR is used and a supplier exhausts remedies under that first, it is likely to be too late to bring a claim under the Act. If a supplier wants to argue the Act should have been used and not PSR, that supplier will need to bring a protective claim under Act.
Authors
