Regulated procurement
Public procurement is the purchasing of goods, services or works by the public sector. Prior to Monday 24 February 2025, procurement processes (and also variations to public contracts in force before that date) were (and continue to be) regulated by a system of rules deriving from the Treaty on the Functioning of the European Union.
A separate set of rules (but one that stems from the same origins) applies to procurement by utilities; a third regulates the procurement of concession contracts, whether by the public sector or by utilities. Again, these rules govern procurement processes that started before Monday, 24 February 2025, and variations to public contracts already in force before that date.
Following the UK's departure from the EU and the end of the Brexit transition period on 31 December 2020, the EU-derived procurement rulebook was generally retained, with just a few changes made. From Monday, 24 February 2025, however, the UK procurement rulebook diverged more extensively from the EU-derived regime as the UK takes advantage of the flexibilities it now has as a non-EU member state. The government's proposals, which were originally published in the Transforming public procurement Green Paper and consulted on during 2021, set out the proposed direction of travel. On 6 December 2021, the government provided an update by publishing its response to the consultation. The result of the proposals is the Procurement Act 2023 – an all-new, substantial piece of primary legislation that replaces the old procurement regime from 24 February 2025. Changes introduced by the new Act include a unified regime (as opposed to separate regimes for public procurement, utilities procurement and concessions) and general procedural simplification. The box in this section (entitled ‘Procurement law reform in the UK: the Procurement Act 2023’) provides more detail on the scope and key features of the new Act. The remainder of this section – except for the note on the new Act – concentrates on the previous procurement regime, which was substantially replaced on 24 February 2025 but which, as explained above, continues to apply to all procurement processes that started before 24 February 2025, and to any variations to public contracts already in force before that date.
NOTE: the pre-Act regime, described in the first paragraph of this guide, continue to apply to procurements that were already underway as at 24 February 2025, even if those procurements remained ongoing at the point when the new Act entered force.
The procurement regime exists to open up public procurement to competition. It does so by setting out a legal framework of rules to govern the award of public contracts, wherever those contracts come within the scope of the rules (by virtue of their nature and subject matter) and exceed certain financial thresholds.
This section focuses principally on the part of the previous (until 24 February 2025) national procurement regime applying to the public sector (central and sub-central government, other public-sector bodies and bodies governed by public law) in England, Wales and Northern Ireland. Procurement by utilities and of concession contracts are touched on where appropriate. Scotland has its own set of procurement rules, which are generally similar but with some appreciable differences.
Despite the introduction of the Procurement Act in February 2025, it is important to bear in mind that, although the pre-Act regime will no longer regulate new procurement processes that start on or after that date, it will continue to regulate (a) procurement exercises that started before that date and are still in progress after it, and (b) public contracts that are the result of procurements that started before that date. This latter feature will be relevant principally in relation to variations (i.e. changes) to contracts procured under the pre-Act regime; the pre-Act regime will continue to govern such variations.
This section is maintained by Christopher Brennan of Gowling WLG (UK) LLP.