The Procurement Act (2023) is set to radically alter the way UK public sector procurement operates when it goes live later this year.
Many of these changes have been devised with the express intent of increasing transparency surrounding government contracting.
This article takes a look at one of the new notice types being introduced by the Procurement Act to tackle the issue of public sector transparency: the Transparency Notice.
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This article is part of a series of articles on the 2023 Procurement Act.
Head to Tussell's Procurement Act Hub for all the information and resources you need to get Procurement Act-ready.
Under the 2023 Procurement Act, contracting authorities will be required to publish a transparency notice before awarding a contract or framework agreement as a 'direct award' (i.e. without a competitive tender process).
Whilst transparency notices have existed for years, contracting authorities have, up until now, published them on an entirely voluntary basis.
In the absence of a competitive bidding process, the transparency notice is intended to enable contracting authorities to be held accountable for the non-competitive contracts they sign with the private sector.
Regulation 26 of the Procurement Regulations 2024 mandates that the following information be included in the transparency notice:
The contracting authority;
The title of the procurement;
The unique identifier for the procurement;
The unique identifier for the contract (if this is known when the transparency notice is published);
The contract subject matter;
If/whether the contract is a special regime contract - ie. a concession contract, a defence and security contract, a light touch contract or a utilities contract;
Whether the contract has been awarded to an excluded supplier;
Whether the contract is being awarded directly to a supplier in order to protect life (or for any other reason outlined in section 42 of the Procurement Act);
If the contract is being awarded in lots;
The estimated contract value;
Whether the contract is suitable for SMEs and/or VCSEs;
A description identifying any risk that satisfactory performance of the contract may not be fulfilled;
Whether suppliers have been selected for the award of the contract - if supplier(s) have been chosen then details of the supplier should also be included;
The estimated contract start date;
Whether the contract is a framework;
Any other information the contracting authority wishes to publish.
Additional information may also be required in specific cases.
By requiring contracting authorities to publish this information before directly awarding a contract, the procurement process should - in theory - become more transparent, and public bodies should be should be held more easily accountable for their procurement decisions.
The introduction of compulsory transparency notices is not the only way the government hopes to increase public accountability in public procurement.
A range of other measures will also be ushered in by the Procurement Act later this year with the intention of tackling this same issue.
For the first time in UK public procurement history, the Procurement Act will mandate the publishing of official Key Performance Indicators (KPIs) for almost all contracts valued at £5m+.
In addition to publishing these KPIs at the beginning of the contract term, contracting authorities will need to publish a Contract Performance Notice at least once per annum to track performance against these KPIs.
This performance will then be subject to public scrutiny. Poor performance may be considered grounds for supplier exclusion or debarment from future contracts.
Increased regulation surrounding framework and call-off publishing is also being introduced to help combat a perceived lack of transparency surrounding framework contracts.
The 2023 Procurement Act is set to bring framework call-off publishing rules in line with non-framework contract publishing.
The new legislation will also require framework providers to publish more information than before when creating a framework.
Learn about the upcoming changes to procurement frameworks
Contract Change Notices and Contract Termination Notices are being introduced to increase transparency in instances where contracts are altered or terminated early.
Contract Change Notices will need to be published when a contract is modified to include additional services, additional suppliers or additional costs.
Proponents of the Procurement Act claim that these new notices will improve transparency specifically in instances where contracts change or end mid-term.
Historically, information on this may have only been accessible via FOI request.
The 2023 Procurement Act looks to address transparency gaps largely through the creation of new notice types.
The new notice certainly represents a tangible step to compel procurement teams to publish more information and rationale surrounding their procurement decisions.
Whilst some experts claim that the Act will have a positive effect on transparency in public procurement, others have expressed concern over the new measures.
For one, the influx of new notice types may be a source of unnecessary complication and confusion for already stretched public sector procurement teams.
Whether teams have enough time and resources to correctly fill out and publish new notice types such as the Transparency Notice remains to be seen.
Other critics of the new legislation point to the fact that additional notices and data points do not necessarily correlate with increased transparency.
Whether these notices are well-organised, accurate and easy to access will be key to the success of the new procurement regime.
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If you're worried about how the Procurement Act will affect your procurement team you're not alone.
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This article is part of a series of articles on the 2023 Procurement Act.
Head to Tussell's Procurement Act Hub for all the information and resources you need to get Procurement Act ready.
Dean Fazackerley, Procurement Act - A focus on the new notice regime (LHC, https://www.lhcprocure.org.uk/knowledge-hub/procurement-reform/procurement-reform-news/procurement-act-a-focus-on-the-new-notice-regime/)
The Procurement Regulations 2024 (Legislation.gov, https://www.legislation.gov.uk/ukdsi/2024/9780348259728/regulation/26#regulation-26-2-h)
Procurement Act 2023 (Legislation.gov, https://www.legislation.gov.uk/ukpga/2023/54/part/3/chapter/1)