Preparing for the Procurement Act - A Checklist for Higher Education Institutions

This checklist is designed to help Higher Education Institutions prepare for transition to the new public procurement regime which is expected to apply from around October 2024. It is not intended to be an exhaustive guide to the new rules nor a substitute for formal training on the new regime. 

Please note – some provisions in the Procurement Bill (those relating to implied payment terms and below-threshold procurements) do not apply to ‘schools’ and,  or these purposes, ‘school’ includes certain institutions within the further education sector. 

General points

• Consider the structure of your organisation, the teams within it and how they need to work together – the new regime will affect procurement, contract  management and finance functions, as well as the technical teams who are your internal client.
• Identify key training requirements and establish a communications strategy to ensure those who will be affected by the new regime are aware of it and  understand their obligations.
• Consider your organisation’s procurement pipeline. If there are projects which are not expected to go out to procurement until after October 2024, the project  team should ensure that they are working on the basis of the Procurement Bill rather than the Public Contracts Regulations 2015 in planning the process and  documents.

Procurement functions

• Consider the range of requirements your organisation commonly procures, and whether it would be advantageous to design some tailored procurement  processes based on the new competitive flexible procedure, in order to avoid the need to design a procurement process from scratch each time. 
• Consider providing training for the procurement team on developing appropriate and helpful KPIs that can be measured and that will drive the right  behaviours. Bidders may wish to negotiate KPIs and additional training will assist the procurement team with this task. 
• Update your procurement processes to include checking the debarment list for excluded and excludable organisations and checking for those who have performance notices published about them.
• Consider how your organisation captures decision-making throughout the procurement process to ensure that there is a complete audit trail of the decisions made including e.g. deciding not to exclude someone for past poor performance and the reasons.
• A decision to exclude a supplier on the basis of a mandatory or discretionary ground for exclusion requires a report to be made to the Minister (or Welsh  Ministers, in Wales) and this can result in an investigation and potentially the supplier being put on the debarment register. Ensure your organisation has a  robust decision making process in place around decisions to exclude and ensure that any such decisions will be fully supported by a contemporaneous audit  trail.
• Ensure your evaluation teams are trained on the new requirement to consider and provide reasons why a bidder did not score higher for its response (needed for inclusion in the assessment summary).
• Review your organisation’s approvals and governance processes so that the Contract Award Notice can be published as soon as possible after the assessment summaries are sent out in order to start the standstill period running (and minimise the time bidders have to review and decide whether to challenge).

Finance functions

• Under the new regime, contracting authorities will have financial reporting obligations, such as the publication of payment compliance notices and notices of payments over £30,000. Determine if this is a finance team responsibility or a contract management team responsibility and ensure that the publication requirements are built into the team processes.
• Review your finance software to ensure that it can generate reports to support these reporting obligations, making any changes if required.

Legal functions

• Carry out a review of your standard contract terms to ensure that they do not cut across the implied terms on payment and termination and that these align with your finance processes.
• Check that your standard terms make clear that you are entitled to publish a copy of the contract (where the value exceeds £5m, but note the exception for  devolved Welsh procurements).
• Check that your standard terms include provisions to enable collection of data on contract performance (in all cases, not just where there will be KPIs).
• Prepare for an increase in FOIA requests in relation to contracts and procurement processes. Review internal capacity to manage FOIA requests and consider whether any additional training on FOIA and related information law requirements such as the GDPR is required.
• Organisations will be keen to ensure that commercially sensitive information is not put into the public domain through the publication of copies of the contract  (for contracts with a value of £5m or more) or any of the various transparency notices. Consider if guidance should be provided to the procurement and  contract management teams as to what information would be considered commercially sensitive.
• Consider if any additional training is required for technical / client teams which will be preparing specifications in order to ensure that these will be compliant.
• Update any internal guidance on when a direct award is permitted.

Contract management functions

• Begin engagement with the contract management team early, as they may not have been involved in live procurement processes previously and may need  some background training on the procurement rules.
• Review your contract management systems and tools, as well as standard processes, and determine what modifications are required to support the increased performance reporting requirements for the contract management team.
• Given how important KPIs will be, consider whether any general upskilling on developing appropriate, helpful KPIs is required. It is recommended that this support is provided not only to the contract management team but also to the procurement team and potentially the in-house legal function as well so that these teams can appropriately support the development of effective KPIs in the procurement process.
• Ensure that your contract management processes are updated to include the additional reporting and transparency requirements e.g. publication of notices before making modifications, performance notices, notices on termination/expiry of the contract.

For more information please watch our  'Higher Education Autumn Webinar: One year to go to the new Procurement Bill – how should higher education institutions prepare?' or contact Bethan Lloyd or Ross Palmer.