Procurement Act 2023
| Jurisdiction | UK Non-devolved |
| Citation | 2023 c. 54 |
Procurement Act 2023
2023 Chapter 54
An Act to make provision about procurement.
[26 October 2023]
Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
PART 1
Key definitions
1 Procurement and covered procurement
(1) In this Act—
(a)
(a) “procurement” means the award, entry into and management of a contract;
(b)
(b) “covered procurement” means the award, entry into and management of a public contract.
(2) In this Act, a reference to a procurement or covered procurement includes a reference to—
(a)
(a) any step taken for the purpose of awarding, entering into or managing the contract;
(b)
(b) a part of the procurement;
(c)
(c) termination of the procurement before award.
(3) In this Act, a reference to a contracting authority carrying out a procurement or covered procurement is a reference to a contracting authority carrying out a procurement or covered procurement—
(a)
(a) on its own behalf, including where it acts jointly with or through another person other than a centralised procurement authority, and
(b)
(b) if the contracting authority is a centralised procurement authority—
(i) for or on behalf of another contracting authority, or
(ii) for the purpose of the supply of goods, services or works to another contracting authority.
(4) In this Act, “centralised procurement authority” means a contracting authority that is in the business of carrying out procurement for or on behalf of, or for the purpose of the supply of goods, services or works to, other contracting authorities.
2 Contracting authorities
(1) In this Act “contracting authority” means—
(a)
(a) a public authority, or
(b)
(b) in the case of a utilities contract, a public authority, public undertaking or private utility,
other than an excluded authority.
(2) In this Act—
“public authority” means a person that is—(a) wholly or mainly funded out of public funds, or(b) subject to public authority oversight,and does not operate on a commercial basis (but see subsections (9) and (10));
“public undertaking” means a person that—(a) is subject to public authority oversight, and(b) operates on a commercial basis;
“private utility” means a person that—(a) is not a public authority or public undertaking, and(b) carries out a utility activity.
(3) A person is subject to public authority oversight if the person is subject to the management or control of—
(a)
(a) one or more public authorities, or
(b)
(b) a board more than half of the members of which are appointed by one or more public authorities.
(4) The following are examples of factors to be taken into account in determining whether a person operates on a commercial basis—
(a)
(a) whether the person operates on the basis that its losses would be borne, or its continued operation secured, by a public authority (whether directly or indirectly);
(b)
(b) whether the person contracts on terms more favourable than those that might reasonably have been available to it had it not been associated with a public authority;
(c)
(c) whether the person operates on a market that is subject to fair and effective competition.
(5) The following authorities are excluded authorities—
(a)
(a) a devolved Scottish authority;
(b)
(b) the Security Service, the Secret Intelligence Service and the Government Communications Headquarters;
(c)
(c) the Advanced Research and Invention Agency;
(d)
(d) any person that is subject to public authority oversight—
(i) only by reference to a devolved Scottish authority, or
(ii) by reference to an authority mentioned in paragraph (b) or (c).
(6) An authority is a “devolved Scottish authority” if its functions are exercisable only in or as regards Scotland, and—
(a)
(a) none of its functions relate to reserved matters, or
(b)
(b) some of its functions relate to reserved matters and some do not.
(7) A contracting authority that is a public undertaking or private utility is to be treated as a devolved Scottish authority for the purposes of this Act if it operates only in or as regards Scotland, and—
(a)
(a) none of its activities relate to reserved matters, or
(b)
(b) some of its activities relate to reserved matters and some do not.
(8) In this Act, a reference to a devolved Scottish authority includes a reference to an authority that is to be treated as a devolved Scottish authority for the purposes of this Act.
(9) In this Act, a reference to a public authority includes a reference to the Common Council of the City of London.
(10) For the purposes of this Act, a person that operates on a commercial basis but is, as a controlled person, awarded an exempted contract by a public authority in reliance on paragraph 2 of Schedule 2 (vertical arrangements) is to be treated as a public authority in relation to any relevant sub-contract.
(11) This Act does not apply to His Majesty acting in his private capacity.
(12) In this section—
“relevant sub-contract” means a contract substantially for the purpose of performing (or contributing to the performance of) all or any part of the exempted contract;
“reserved matters” has the same meaning as in the Scotland Act 1998.
3 Public contracts
(1) A “public contract” is a contract of a kind specified in subsection (2), (3) or (4).
(2) Any contract for the supply, for pecuniary interest, of goods, services or works to a contracting authority which—
(a)
(a) has an estimated value of not less than the threshold amount for the type of contract, and
(b)
(b) is not an exempted contract.
(3) Any framework which—
(a)
(a) has an estimated value of not less than the threshold amount for the type of contract, and
(b)
(b) is not an exempted contract.
(4) Any concession contract which—
(a)
(a) has an estimated value of not less than the threshold amount for the type of contract, and
(b)
(b) is not an exempted contract.
(5) Schedule 1 sets out the threshold amounts.
(6) Schedule 2 sets out contracts that are exempted contracts for the purposes of this Act.
4 Valuation of contracts
(1) For the purposes of this Act, the “estimated value” of a contract is its value for the time being estimated by a contracting authority.
(2) A contracting authority that estimates the value of a contract must do so in accordance with Schedule 3.
(3) A contracting authority must not exercise a discretion in connection with estimating the value of a contract with a view to securing that any requirement of this Act does not apply in relation to the contract.
5 Mixed procurement: above and below threshold
(1) Subsection (3) applies if, on award of a below-threshold contract other than a framework, a contracting authority considers that—
(a)
(a) certain of the goods, services or works to be supplied under the contract could reasonably be supplied under a separate contract, and
(b)
(b) that contract would have an estimated value of not less than the threshold amount for a contract of its type.
(2) Subsection (3) applies if, on award of a below-threshold contract that is a framework, a contracting authority considers that—
(a)
(a) certain of the goods, services or works to be supplied under contracts awarded in accordance with the framework could reasonably be supplied under a contract not awarded in accordance with the framework, and
(b)
(b) that contract would have an estimated value of not less than the threshold amount for a contract of its type.
(3) The contract is to be treated as having an estimated value of not less than the threshold amount for the type of contract.
(4) In considering whether goods, services or works could reasonably be supplied under a separate contract, a contracting authority may, for example, have regard to the practical and financial consequences of awarding more than one contract.
(5) In this Act “below-threshold contract” means—
(a)
(a) a contract for the supply, for pecuniary interest, of goods, services or works to a contracting authority,
(b)
(b) a framework, or
(c)
(c) a concession contract,
that has an estimated value of less than the threshold amount for the type of contract.
(6) This section does not apply to a contract awarded in accordance with a framework.
6 Utilities contracts
(1) In this Act, “utilities contract” means a contract for the supply of goods, services or works wholly or mainly for the purpose of a utility activity.
(2) In this Act, “utility activity” means an activity that—
(a)
(a) is specified in Part 1 of Schedule 4,
(b)
(b) is not specified in Part 2 of Schedule 4,
(c)
(c) is not carried out wholly outside the United Kingdom, and
(d)
(d) in the case of an activity carried out by a person that is not a public authority or public undertaking, is carried out pursuant to a special or exclusive right.
(3) A person carries out a utility activity pursuant to a “special or exclusive right” if—
(a)
(a) the person (whether alone or with others) has been granted a right to carry out the activity pursuant to any statutory, regulatory or administrative provision, and
(b)
(b) that provision also substantially limits the ability of persons not granted the right to carry on the activity.
(4) But a right to carry out a utility activity is not a “special or exclusive right” if it is granted—
(a)
(a) following award under section 19 (competitive award), or
(b)
(b) otherwise pursuant to a procedure in which—
(i) the opportunity to be granted the right was publicised widely enough to avoid an artificial narrowing of competition, and
(ii) the grant of the right was based on criteria that did not favour or disadvantage certain persons.
(5) An appropriate authority may by regulations amend Part 2 of Schedule 4 for the purpose of—
(a)
(a) specifying an activity, or
(b)
(b) removing an activity.
(6) Regulations under subsection (5) may not...
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