April legal update: pipeline notices and updates to PSR statutory guidance

It’s now been just over 2 months since the Procurement Act 2023 went live, and with the latest figures showing over 150 tender notices published, the new rules are now slowly being introduced. We have seen further information come out about how procurement will operate under the Act, the responsibilities we have under it and changes to other legislations impacted by the Act.

There are now 28 calendar days until pipeline notices need to be published. For those using Atamis, the notice has made it onto the sandbox site but no confirmed date of when it will become available on the live site as of the time of writing this.

As I’m sure you’re aware (it has been heavily discussed on LinkedIn), a separate pipeline notice will need to be published for each contract over £2 million (where pipeline notices are applicable to your organisation) and not just one notice that covered all contracts, as we had previously thought (or at least hoped!).

The notices will need to include details about the procurement such as title, procurement references, subject matter and estimated date that either the tender or transparency notice will be published, as well as some information about the contracting authority.

Contracting authorities may also want to consider whether they go over and beyond the requirements stated in the Act and publish contracts that are either below £2 million, are works contracts above £2 million but below the works threshold, or for organisations that don’t meet the £100 million threshold but want to publish regardless.

Updates to Provider Selection Regime statutory guidance

This month has also seem the statutory guidance for the Provider Selection Regime (PSR) updated, partially to align aspects to the Procurement Act in terms of the exclusions and debarment regime, but also to make the guidance easier to understand and navigate.

A point of interest to note is the enhanced guidance on the most suitable provider process, providing more clarity on the difference to the competitive process.

The statutory guidance states that the fundamental difference between the most suitable provider process and the competitive process is:

• Competitive process: each interested provider must submit a bid that is evaluated by the relevant authority to determine which is successful
• Most suitable provider process: the relevant authority makes a judgement on the suitability of the provider (or group of providers) based in its knowledge of the market.

If you are using PSR or are likely to use it in the future, it is worth ensuring you have looked at these updates, which can be found on NHS England’s website.

Another useful resource is the Procurement Policy and Regulation page on the Hub website, which is regularly updated. In order to continually improve this page and ensure it remains a relevant support to our NHS community, we welcome suggestions on what you would like to see covered.