How to successfully implement the Procurement Act 2023 – Q&A for Education Professionals

Our recent webinar, How to successfully implement the Procurement Act 2023, gave us an opportunity to understand the questions those working in the education sector have about the impact the legislation changes will have on their procurement activity.

We’ve pulled together the questions asked and answers given by Jessica Brydon, our Procurement, Quality & Compliance Director and expert in the forthcoming Procurement Act during the session below.

If you have any questions about the Procurement Act, please don’t hesitate to reach out to us. You can also watch a recording of the recent webinar here.

Q&A

1. Are there different rules if procuring from other public sector bodies? E.g. schools buying from Local authority services?

There are some exceptions from the regulations if you are procuring from your own local authority, or another public body which has control over your organisation. If the local authority you are procuring from is the local authority which has control of your school, then you are likely to able to procure from them directly without having to apply the regulations. However this is only possible where the local authority is deemed to have “control” of the school and therefore would not apply if you were procuring from a different local authority for example, or another public body without control – in this case the regulations would still apply and a tender would be required for over threshold procurements.

Place Group can provide you some guidance on procuring from other public bodies if this is something you are considering.

2. If you are spending large amounts on supply staff in school, under the old regs it was deemed that this could be considered an activity that should be tendered, or using a framework supplier. Does anything change in regards to this?

If the spend is over threshold, then under the new regulations this is still something which should be tendered wherever possible. You can look at using frameworks (such as the CCS Supply Teachers and Temporary Staffing framework), or setting up your own contract or framework agreement for Agency Supply. Place Group have experience in tendering and we would be happy to provide hands on support for any organisations looking at putting this in place.

3. If we have already done pre-market engagement but will go to tender after the new act goes live, how would we manage this? Do we need to start again? 

You don’t need to start it again, but you must use the new rules for the remainder of the process and explain the market engagement within the tender and information in the tender notice, so that you are as transparent as possible with suppliers.

4. Is the new threshold for goods and services an annual limit or a 3 year limit, like the outgoing regulations?

The thresholds are for the full contract value, including VAT, rather than an annual amount. It is always important to fully assess the potential contract value at the outset of your procurement activity, including any potential contract extensions, as well as potential estimated inflationary and National Living Wage implications.

5. Do we have to publish the termination and performance notices for existing contracts?

No, only those procurements which are tendered under the new regime will require the new notices (i.e. any procurements for which a contract notice has already been published under the current regulations will remain under the current regulations, including all notices).

It’s important to use your contract register to track which procurements started under which regulations, to ensure you publish the correct notices based on which regulations apply.

6. Does using frameworks for procurements mitigate any aspects of the regulation? And which frameworks are best?

Existing frameworks prior to 24th February 2025 (and any published for tender before this date) will remain under the previous legislation, the Public Contract Regulations 2015, as the Procurement Act 2023 only applies to procurements that have not commenced before the 24th February 2025.

Any call-offs under existing frameworks will also remain subject to only the existing legislation, and not the new Act, even if these are tendered through the framework after the new Act commences. This means you will need to remember to apply the old regulations to any call-offs under frameworks let under the current regulations.

Frameworks under the new regulations are unlikely to be available for a few months after the Act commences, as these need to be tendered and set up by contracting authorities before they go live. You will still need to comply with the regulations even for framework call-offs, however some notices (such as tender notices) do not need to be published for framework call-offs, although contract award notices, contract details notices and other contract management notices will still need to be published as required by the regulations.

The DfE provides a list of approved frameworks online for schools to utilise, however you will need to ensure any framework you use is suitable for your specific needs and is compliant to use for your specific procurement by checking the framework documentation and consulting with the framework provider.

7. Is it mandatory to assess Conflicts of Interest for both under and over the threshold procurements throughout the stages of the process? Or is multi stage COI assessment only for over the threshold procurements? I assume it is a good practice to do in both instances?

No, only those procurements which are tendered under the new regime will require the new notices (i.e. any procurements for which a contract notice has already been published under the current regulations will remain under the current regulations, including all notices). It’s important to use your contract register to track which procurements started under which regulations, to ensure you publish the correct notices based on which regulations apply.

8. Do we need to publish our procurement pipeline?

Only contracting authorities with annual spend over £100m need to publish pipeline notices, however if you want to publish your pipeline of procurement so suppliers are aware of what procurements you have coming up, for example posting it on your website regularly, this is certainly good practice and can encourage healthy competition.

9. How can you ensure the number of suppliers to evaluate for a tender is reasonable given resource and capacity? 

In cases where you are expecting a lot of tenders, the competitive flexible process can be used to reduce the number of suppliers you take forward in each stage of your competitive tender process as long as you base this on fair and objective criteria which you clearly set out in your procurement documentation.

You can also set “conditions of participation” at the first stage the process which are key requirements to assess legal and financial capacity or technical ability to perform your contract, to make sure only suitable suppliers are taken through to tender. Place Group are experts at designing and running complex procurement processes and we would be delighted to support you with any competitive flexible procurements you have coming up.