Procurement in a Nutshell – Procurement Act 2023 Guidance: Procurement Review Unit

Introduction

The Procurement Act 2023 is expected to come into force on 24^th February 2025.

The Act will, in particular, revoke the following:

• Public Contracts Regulations 2015 (PCR)
• Concession Contracts Regulations 2016
• Utilities Contracts Regulations 2016

You can find a copy of the guidance here.

The role of the PRU

In short, the PRU will manage the oversight regime on behalf of a Minister of the Crown.

It will monitor compliance by contracting authorities, focusing mainly on investigations into contracting authorities who demonstrate ‘institutional non-compliance’ across its procurements (Section 108).

The services of the Procurement Review Unit (PRU) apply to contracting authorities that will carry out procurement in accordance with the Act.

Procurement investigations

If an investigation is being conducted, the PRU may by notice require a contracting authority to provide relevant documentation as is reasonably required for the purposes of the investigation (Section 108(2)).

A contracting authority that receives a notice as part of a procurement investigation must comply within the timeframe specified in the notice, which must be at least 30 days from the day the notice is given (Section 108(3)). A contracting authority may request additional time to comply with the notice, but the PRU is not obliged to agree.

Section 109 recommendations

Following a procurement investigation, a Minister may issue a Section 109 recommendation to a relevant contracting authority, if it considers that the contracting authority is engaging in action which is causing, or that is likely to cause, a breach of any requirement of the Act. The contracting authority must have regard to the Section 109 recommendation. The guidance stresses that if a contracting authority decides not to follow the recommendation, it must have clear reasons for doing so and should record these in writing.

Section 109(5) states that a contracting authority must, where the recommendation so specifies, submit a progress report, outlining the action it has taken as a result of the recommendation. As previously mentioned, if no action has been taken, the progress report must include the contracting authority’s reasons for this.

The PRU will manage the publication of investigation reports; any Section 109 recommendations that are issued (Section 108) and progress reports.

Guidance under Section 110

Section 110 allows the PRU to issue guidance following a procurement investigation, which contracting authorities are required to have regard to (Section 110(2)).

This guidance is anticipated to adopt a ‘lessons learned’ approach.

What does this mean?

It is hoped that the PRU will raise standards across public sector procurement through early identification and rectification of institutional breaches. Contracting authorities should therefore ensure that come February 2025, they fully understand their obligations under the Act. To assist with preparing for the ‘go live’ date in February, please see our Nutshell series on the Procurement Act here.

For further information please contact Melanie Pears or Tim Care in our Public Sector Team.