New Procurement Legislation Approved

Nov 29
Putting the Pieces Together. After 2years of discussion, a Green Paper,consultations, and just over a year passing through both Houses of Parliament, The Procurement Act 2023 received Royal Assent on 26th October 2023. Although this was anticipated, what was not expected until 19th October 2023 was that the Secretary of State for Health, acting on powers under the Health and Social Care Act 2022, would table secondary legislation in the form of a Statutory Instrument:
The Health Care Services (Provider Selection Regime) Regulations 2023


The draft stated the date of coming into force as 01.01.2024.

The original draft of the Procurement Act stated "For the avoidance of doubt, the provisions of this act apply to procurement by NHS England". It was clear from this and other references that the Government's intention was that the Act would apply to NHS tendering.

An Impact Assessment dated 22.04.2023 set out the case for a different approach for NHS procurement which was accepted and references to the NHS disappeared from the Act.
Statutory Instruments (SIs) are secondary legislation which are based on existing Acts of Parliament. As such a full Parliamentary legislative procedure is not required for them to become law. A simple vote in both the Lords and the Commons suffices. However, some (SIs) may be the subject of a debate in the Lords and and consideration by a Committee of the Commons before a formal vote is taken in that House without further debate.

The first tabling of the SI "ran out of time" as the Parliamentary session ended at the end of December and a new session was introduced by the King in early November.
The Lords "affirmed their approval on 27th November, following an interesting debate, more of which in a later post. The Commons Committee considered the SI on 28th of November for a formal vote to approve, without further debate by the Commons. The vote to approve the Regulations was taken by the House on 29th November 2023, meaning that these rules now form the law for NHS services procurement.They will come into force for all Health related contracts which have not been started (an invitation notice has not been published) by midnight on 31st December 2023. All procurement started before the new Regulations come into force will follow the procedures set out in the 2015 PCRs to contract award.

The Academy offers a course for providers setting out in detail what the requirements are, in particular how the five new award procedures will work. As a bonus we have been able to provider details of what tenderers may be expected to submit to comply with the assessment and award procedures.

As with all new legislation there is good news and bad news, but certainly time is short if you currently hold or tender for NHS contracts.

It is the government's intention that the Procurement Act will be "live: from October 2024". It is a single piece of legislation covering all procurement (except the NHS) in England wales and Northern Ireland. There are some areas which fall under the main legislation, but whose requirements and detail are to be covered by separate SIs. The Act identifies eleven in all, but this may change. If you tender for social care  contracts it will be important to track this primary and secondary legislation as it proceeds into law. Another factor to be borne in mind is that sometimes the nature of the services provided by the NHS and those defined as social care are very close in subject matter, service users, and delivery methods. This may mean that some providers will find themselves tendering under two different sets of regulations. For this reason it will be important to learn about both sets of legislation, track the changes as they are introduced and as ever to plan; plan; plan for the future.Follow us here, and also follow our courses to ensure that you are able to secure contracts as the year progresses and onward into the future.
 
We will post more on both pieces of legislation in the coming days, weeks and months. If you require more information such has how to subscribe to all of our courses at a reduced rate, and never miss an important update please email info@thetenderingacademy.com

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