Local authorities and housing associations are at the centre of many land-based projects, whether this is for small-scale developments, wider neighbourhood regeneration, town centre revitalisation programmes or other infrastructure initiatives.

Before proceeding with a project, local authorities have become used to considering the extent to which they should be undertaking a procurement exercise for the partnering developer and other aspects of the supply chain for the project. Under the Public Contracts Regulations 2015 (PCR 2015) and taking into account EU case law, we became adept in considering whether the project principally entails a land transaction (broadly, not applicable) or is a public works contract or some kind of concession (both covered).  

On 28 October 2024, the PCR 2015 will be replaced by the Procurement Act 2023 which will take effect for all projects commencing after that date. But this goes much further than the PCR 2015, covering the whole procurement cycle. Also, the number of procedures set out in detail will be substantially reduced. Instead, contracting authorities will effectively have a choice between an open or a competitive flexible procedure. Never again should the words ‘competitive dialogue’ cross our lips! 

The question of whether there should be a competitive tendering procedure under the 2023 Act in the first place will still require an understanding of whether the project is a public works contract. The logical order in which this point is considered under that Act is not the same as before. The answer will be found in the first two schedules of the 2023 Act. The first is Schedule 1, which contains a definition of public works contracts, weirdly, to help determine whether the procurement thresholds have been exceeded. The second is schedule 2 where land transactions are one of the ‘subject matter exempted contracts'.

So when it comes to playing the right tune, there is all to play for in composing variations on the theme of public works contract. New harmonies will have to be learnt and processes that suit the market more can be devised. There is no excuse for taking old ways and replaying them when there is a different orchestra to conduct under the Procurement Act 2023.

For more information or advice on the Procurement Act 2023, contact Mark Cook.