Cabinet Office consultation on draft regulations to implement the Procurement Bill

Published 22 junio 2023

Earlier this month, the Cabinet Office confirmed that we could expect the Procurement Bill to become law in October 2024, following a 6 month notice period. Once the Bill receives royal assent, and becomes the Procurement Act, there will need to be secondary legislation (regulations) to bring elements of the Act, and the wider procurement regime it creates, into effect.

Public consultation on the draft regulations (The Procurement Act 2023 (Miscellaneous Provisions) Regulations 2024) (the Draft Regulations) will be published in two parts. Part 1 was published on 19 June 2023 and focuses on areas of the Bill which require lists, calculations or further definitions to be used in practice. It also addresses elements of the Draft Regulations concerning the light touch regime and the disapplication of the Procurement Act in regard to NHS procurement (i.e. procurements falling within the scope of the forthcoming Provider Selection Regime).

Part 2 is due to launch next month (July). It will focus on transparency provisions and the notices that contracting authorities will need to use under the Act. It will also include information on the proposed approach to transitional arrangements for procurements already underway, and on other legislation that will need to be amended in order for the full provisions of the Act to take effect.

Part 1 Consultation on draft regulations to implement the Procurement Bill

Part 1 of the consultation seeks views on the Draft Regulations relating to:

• Light touch regime contracts and reservable light touch services
• Exempt Contracts: Vertical and horizontal activities calculations
• Exempt Contracts: Utilities intra-group turnover calculations
• Utility turnover and supply tests
• Intra-UK Procurement
• Definitions of ‘Central Government Authority’ and ‘Works’ for thresholds
• Disapplication of section 17 of the Local Government Act 1988
• Disapplication in regard to NHS procurement

Views are not sought on the policy itself (this has already been subject to consultation and is established by the Procurement Bill).  Instead, respondents are asked to state to what extent they agree or disagree with the questions under each section (18 questions in total) - these questions essentially ask respondents to consider how far they consider that policy intent has been accurately reflected in the Draft Regulations.

Where respondents disagree or strongly disagree that the policy intent is appropriately reflected, they have the opportunity to add comments. Comments should be limited to identifying drafting inconsistencies, gaps or overlaps with other provisions in the Bill or Draft Regulations.

Our view

Those that hoped this consultation would give more detail of the new regime or offer another opportunity to comment on the policy or the Procurement Bill itself will be disappointed. This is a technical consultation; seeking confirmation that the Draft Regulations are clear and well-drafted.

We would still encourage organisations to respond and engage with the process (if only to familiarise themselves with the Draft Regulations and new regime). Six months' notice before royal assent isn't a particularly long time to prepare and whilst it's "business as usual" for now, contracting authorities will want to start familiarising themselves with the draft legislation, including the Draft Regulations, in preparation for the new Act.

The consultation closes on 28 July.