Procurement Act 2023 - Procurement Objectives

As we’ve covered in our previous updates, the Procurement Act 2023 has received Royal Assent and is due to come into force in October 2024. To help you prepare, we are producing a series of bitesize articles, looking at key provisions and changes for contracting authorities and suppliers into the public sector to be aware of.

Objectives of procurement – the key is in the language

Procurement practitioners will recall that the retained EC Treaty Principles of transparency, equal treatment, non-discrimination and proportionality underpin the architecture of the current procurement regime, as set out in Regulation 18 of the Public Contracts Regulations 2015 (‘PCR’). 

In a change of language but retaining the same themes, the new Procurement Act (at section 12) replaces those ‘principles’ with certain procurement ‘objectives’ which a contracting authority must have regard to, namely:

• delivering value for money;
• maximising public benefit
• sharing information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions; and
• acting, and being seen to act, with integrity

Equal treatment is also present under a different guise – contracting authorities must treat suppliers the same, unless a difference between the suppliers justifies different treatment. In considering if that equal treatment is justified, the contracting authority must take all reasonable steps to ensure it does not put a supplier at an unfair advantage or disadvantage.

In addition, the Procurement Act also imposes independent duties on contracting authorities to consider potential barriers to small and medium sized businesses when participating in procurement and to consider whether those barriers can be removed or reduced.

What do you need to know?

The objectives are very similar to those under the PCR however one point to note is that, unlike with PCR, ‘procurement’ is defined by the Procurement Act to mean not only the award of a contract, but specifically “the award, entry into and management of a contract.” The requirement to have regard to the objectives therefore applies throughout the life of the contract, not just to the procedure to award. 

Notably absent from section 12 is any specific reference to ‘proportionality’ however there are independent obligations throughout the Procurement Act that require contracting authorities to act in a proportionate way, for example ensuring that conditions of participation are proportionate, and that the procedure and award criteria adopted are proportionate, having regard to the nature, complexity, and cost of the contract. 

The precise use of language in section 12 is something that contracting authorities should take note of in respect of these objectives and must act accordingly. Contracting authorities must have regard to the 4 objectives set out in section 12 ie they have to consider them but are free to determine what weight is given to them if any, provided that this has a clear rationale. Where there is an obligation to ‘have regard to,’ part of delivering the transparency agenda enshrined in the objectives will therefore be documenting that decision making process in order for that to be subject to scrutiny if an outcome is challenged.