Procurement in a Nutshell – Record Keeping
23rd February, 2024
This Nutshell will analyse the new obligations on contracting authorities in relation to 'Record Keeping', drawing attention to any key changes from previous procurement legislation which contracting authorities ought to be aware of.
The Procurement Act 2023 (the Act) is expected to come into force in October 2024.
The Procurement Act 2023 establishes a new public procurement regime following Brexit, and aims to deliver the Government’s promise to grow the economy by creating a simpler and more transparent system.
The Act will, in particular, revoke the following:
- Public Contracts Regulations 2015 (PCR)
- Concession Contracts Regulations 2016
- Utilities Contracts Regulations 2016
What’s new?
Section 98 of the Act states that a contracting authority must keep such records as the authority considers sufficient to explain a material decision made for the purpose of awarding or entering into a public contract.
A decision is considered ‘material’ under the Act if a contracting authority is required to:
- publish or provide a notice, document or other information in relation to the decision or
- to make the decision
A contracting authority must keep records of any communication between the authority and a supplier that is made:
- in relation to the award of, or entry into, a public contract, and
- before the contract is entered into.
A record under section 98 must be kept until:
- the day on which the contracting authority gives notice of a decision not to award the contract (the Procurement Termination Notice under section 55) or
- the end of the period of three years beginning with the day on which the contract is entered into or, if the contract is awarded but not entered into, awarded.
What’s changed?
While the language between the Act and the PCR 2015 has changed, the obligations expected of contracting authorities when conducting a procurement are substantially the same.
Regulation 84 of the PCR requires contracting authorities to ‘keep sufficient documentation to justify decisions taken in all stages of the procurement procedure’. The Act requires contracting authorities to keep records sufficient to explain material decisions. A material decision includes those which require the publication of a notice, which as shown in previous Nutshells, covers all stages of the procurement process.
However, the Act draws a distinction between the date on which a contract is awarded and the date a contract is entered into. A record under the Act should be kept for at least three years from the day the contract is entered into or, if the contract is awarded but not entered into, awarded. The PCR only requires contracting authorities to keep such records for at least three years from the date of award of the contract.
The Act also makes clear that, where a contracting authority decides to not award a contract, records must be kept until the publication of the Procurement Termination Notice (under section 55). Such a requirement is not addressed in the PCR.
What does this mean?
Contracting authorities should continue to keep records of decisions and communications throughout a procurement, but should place particular emphasis on retaining information which is material to the publication of notices under the Act.
For further information please contact Melanie Pears or Tim Care 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.
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