

The implementation of the Procurement Act 2023, which was originally due to ‘go live’ on 28 October 2024, has been delayed until 24 February 2025 to give the government time to produce a new National Procurement Policy Statement setting out its strategic priorities for public procurement. All contracting authorities will be required to have regard to the Policy Statement when carrying out procurements under the Act.
In the meantime, suppliers are advised to familiarise themselves with the changes coming down the track in order to avoid pitfalls once the new regime comes into force.
Transition period
Firstly, it is important to be aware that the implementation of the Act will not change the legal framework applying to existing procurements and contracts. The extant regulations will continue to apply to procurements started and contracts awarded before the new Act goes live, as well as call-off contracts under existing Framework Agreements.
The only immediate changes will therefore be in respect of procurements which commence after the ‘go live’ date in February next year.
Remedies and challenges
As to the changes which will apply to new procurements, of particular note are the provisions in the Act concerning challenges and remedies.
Timescales in procurement disputes are notoriously tight and remain so under the Act, meaning that suppliers should seek advice if soon as possible if considering bringing a challenge in respect of a procurement.
Limitation
A challenger only has 30 days from the date that it knew – or ought to have known – that grounds for challenge had arisen. If proceedings are issued outside of this 30-day limitation period, the contracting authority has a complete defence to the claim on the basis that it is out of time.
The 30-day limitation period is unchanged under the Act so it remains the case that suppliers should act promptly upon becoming aware of an issue which may give rise to a claim.
Standstill period
At present, there is a 10-day standstill period after a contracting authority gives notice of a tender award during which it cannot enter into the contract with the winning bidder.
The purpose of the standstill period is to allow unsuccessful bidders time to consider whether they may have a claim against the public authority in respect of the award decision before the contract is entered into.
This is important because once the contract has been entered into, a claimant’s remedies will be limited to damages regardless of how strong the merits of its challenge are.
Issuing proceedings within the standstill period imposes an ‘automatic suspension’ which prevents the authority from entering into the contract unless the court orders otherwise. It is important to note that as things stand, a claim which is issued outside of the 10-day standstill period will still trigger the automatic suspension on contract-making provided that it is issued and the authority is informed of the claim before the contract has actually been executed.
There are two significant changes in this regard under the new Act which suppliers need to be alive to:
- The standstill period will be eight working days
- Proceedings issued outside of the eight working-day standstill period but before the contract is entered into will not benefit from the automatic suspension.
It will therefore be more important than ever to seek advice immediately in respect of a potential procurement challenge so that proceeds can be issued within the standstill period.
Automatic suspension
The new Act introduces a statutory test which will apply when a contracting authority seeks to lift the automatic suspension.
At present, the court applies the following test which was established in the American Cyanamid case in respect of interim injunctions:
- a. Is there a serious issue to be tried?
- b. Are damages an adequate remedy?
- c. Where does the balance of convenience lie?
Under this approach, more often than not the court has found that damages are and adequate remedy and that the balance of convenience lies in favour of lifting the automatic suspension.
The Act now introduces a procurement-specific test which requires the court to have regard to:
- a. The public interest in upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law
- b. The public interest in avoiding delay in the supply of the goods, services or works provided for in the contract or modification
- c. The interests of suppliers, including whether damages are an adequate remedy for the claimant
- d. Any other matters that the court considers appropriate.
It remains to be seen what impact the new test will have in practice, but it is noted that Coulson LJ observed in Camelot UK Lotteries Limited that “…it is by no means follows that…the test that will be applied by the courts will be very different to that which is currently applied…”.
Practitioners will therefore be waiting with bated breath for the first application to lift the automatic suspension which comes before the court under the new statutory test.