Procurement in a Nutshell – The Procurement Act 2023 (Consequential and Other Amendments) Regulations 2025
21st March, 2025
This Nutshell will evaluate the changes made to the Act and the PSR by the 2025 Regulations, highlighting the key considerations for contracting authorities when conducting procurements.
The Procurement Act 2023 (the Act) came into force on 24th February 2025.
The Act, in particular, revoked the following:
- Public Contracts Regulations 2015 (PCR)
- Concession Contracts Regulations 2016
- Utilities Contracts Regulations 2016
The Procurement Act 2023 (Consequential and Other Amendments) Regulations 2025 (the 2025 Regulations) also came into force on 24th February and amend the Act and the Health Care Services (Provider Selection Regime) Regulations 2023 (the “Provider Selection Regime” or “PSR”) in order to give effect to the new procurement regime.
Procurement Act 2023
The 2025 Regulations have amended the Procurement Regulations 2024 (which subsequently amend the Act) as follows:
The amendments introduce Regulation 13A which outlines specific information that a supplier or connected persons must provide if they are subject to an exclusion event in order to assist contracting authorities in determining whether the supplier is excluded or excludable in accordance with Section 58 of the Act. It states that suppliers must provide evidence that they:
took the event seriously, for example by paying any fine or compensation;
took steps to prevent the event occurring again, for example by changing staff or management, or putting procedures or training in place; and
committed to taking further preventative steps, where appropriate.
Where a contract has been directly awarded, the Transparency Notice, Contract Award Notice and Contract Details Notice must state which direct award justification in Schedule 5 of the Act applies and must include an explanation as to why the contracting authority considers that it applies.
Provider Section Regime
In short, the 2025 Regulations amend the PSR to incorporate references to the Central Digital Platform, the new Debarment List and the ‘excluded’ / ‘excludable’ supplier provisions.
The key amendments to the PSR include (among others):
- Regulation 20 is amended to state that contracting authorities should not award a contract or framework to an excluded provider, unless, there are exceptional and overriding reasons to do so. As with the Act, the contracting authority has discretion as to whether to exclude a provider that is classified as an excludable supplier.
- The amendments include the introduction of Regulation 20A which requires authorities to request information about whether a prospective provider intends to sub-contract the performance of all or part of the contract, and determine whether any intended sub-contractor is on the Debarment List.
- If the authority considers that an intended sub-contractor is an excluded supplier, the authority must exclude the lead provider from the procurement process (unless there exceptional and overriding reasons not to do so). If an intended sub-contractor is an excludable provider, the contracting authority has discretion as to whether to exclude the lead provider.
- Under the new Regulation 20C, contracting authorities are now also required to notify the Cabinet Office if they have excluded an excluded or excludable provider from a procurement under Regulation 20 or 20A of the PSR, or where they are aware of a sub-contractor having been replaced under Regulation 20A of the PSR within 30 days of such exclusion or replacement.
What does this mean?
The amendments under the 2025 Regulations enhance the transparency and information gathering requirements for contracting authorities when conducting procurements under the Act. We recommend that contracting authorities update their template documentation to include the key details the Act requires suppliers to provide.
Relevant authorities (which includes ICBs, NHS Trusts, NHS England and local authorities) who intend to conduct procurements of health care services under the PSR will be required to utilise the Central Digital Platform as well as monitor the Debarment List. Relevant authorities also now need to ensure that bidders provide relevant information to determine whether they, and any intended sub-contractors, are an excluded or excludable provider.
We advise that authorities conducting procurements under both the Act and the PSR keep detailed records of any decision making relating to whether a prospective supplier is excluded or excludable so that there is a clear audit trail. It is also important that authorities update their own internal guidance to incorporate the additional requirements relating to information gathering and reporting during a procurement.
For further information please contact Tim Care or Melanie Pears in our Public Sector Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.
