Regulated procurement

Public procurement is the purchasing of goods, services or works by the public sector. It is regulated by a system of rules deriving from the Treaty on the Functioning of the European Union. A separate set of rules (but one which stems from the same origins) applies to procurement by utilities; a third regulates the procurement of concession contracts, whether by the public sector or by utilities.

Following the UK's departure from the EU and the end of the Brexit transition period on 31 December 2020, the EU-derived procurement rulebook has generally been retained, with just a few changes made. From October 2024, the UK procurement rulebook is set to diverge more extensively from the EU-derived regime as the UK takes advantage of the flexibilities it now has as a non-EU member state. The government's proposals, which were originally published in the Transforming public procurement Green Paper and consulted on during 2021, set out the proposed direction of travel. On 6 December 2021, the government provided an update by publishing its response to the consultation. The result of the proposals is the Procurement Act 2023 – a new, substantial piece pf primary legislation that will replace the current procurement regime from October 2024. Changes introduced by the new Act will include a unified regime (as opposed to separate regimes for public procurement, utilities procurement and concessions) and general procedural simplification. Procurement law reform in the UK: Procurement Act 2023 provides more detail on the scope and key features of the new Act. The remainder of this section concentrates on the existing procurement regime, which will remain in force until October 2024 (the exact date is not known at the time of writing this).

Note: the existing regime will continue to apply to procurements that are already underway by the time the new Act enters force, even if those procurements remain ongoing at the point when the new Act has come into force.

The procurement regime exists to open up public procurement to competition. It does so by setting out a legal framework of rules to govern the award of public contracts, wherever those contracts come within the scope of the rules (by virtue of their nature and subject matter) and exceed certain financial thresholds.

This section focuses principally on the part of the existing (until October 2024) national procurement regime applying to the public sector (central and sub-central government, other public-sector bodies and bodies governed by public law) in England, Wales and Northern Ireland. Procurement by utilities and of concession contracts are touched on where appropriate. Scotland has its own set of procurement rules, which are generally similar but with some appreciable differences.

This section is maintained by Christopher Brennan of Gowling WLG (UK) LLP.

RICS journal article: Adopting more effective tendering and procurement strategies

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