The Procurement Act 2023 (Commencement No. 3 and Transitional and Saving Provisions) Regulations 2024

Explanatory Note

(This note is not part of the Regulations)

Regulation 2 commences provisions of the Procurement Act 2023 (“the 2023 Act”). Regulation 2(1) commences, the day after the day on which these Regulations are made, subsections (2), (3) and (4) section 115 of the Act. These provisions allow the Scottish Ministers to apply devolved Scottish procurement legislation to contracting authorities regulated by the Act in certain circumstances. They will also allow the Scottish Ministers to disapply the same legislation where a devolved Scottish contracting authority falls to be regulated by the 2023 Act, following forthcoming amendment of the 2023 Act under section 115(1). The same provisions also allow a Minister of the Crown to amend the application of the 2023 Act in order to facilitate intra-UK procurements governed by devolved Scottish procurement arrangements. Regulation 2(2) brings into force almost all provisions of the 2023 Act not previously commenced, with the effect that, from 28th October 2024, those who fall within the scope of the 2023 Act will be regulated under the new regime. A number of provisions of the 2023 Act were commenced in order to make secondary legislation by S.I.s 2024/61 and 2024/361, as set out in the table below.

Regulation 3 is a saving provision which sets out when the Defence and Security Public Contracts Regulations 2011 (“the 2011 Regulations”) will continue to apply despite those Regulations being revoked by paragraph 4 of Schedule 11 to the 2023 Act (commenced by this instrument). Regulation 4 is a transitional provision in respect of the direct award in special cases of public contracts under section 41 of the 2023 Act where the contract is a repetition of an existing contract procured under the 2011 Regulations.

Regulation 5 is a saving provision which sets out when the Public Contracts Regulations 2015 (“the 2015 Regulations”) will continue to apply despite those Regulations being revoked by paragraph 5 of Schedule 11 to the 2023 Act (commenced by this instrument). Regulation 5 also includes a transitional provision, where the 2015 Regulations continue to apply, in respect of the period of validity of dynamic purchasing systems (established under regulation 34 of the 2015 Regulations) and the publication of payment information statistics in accordance with regulation 113(7) of the 2015 Regulations.

Regulation 6 is a transitional provision in respect of the direct award in special cases of public contracts under section 41 of the 2023 Act where the contract is a repetition of an existing contract procured under the 2015 Regulations.

Regulation 7 is a saving provision which sets out when the Concession Contracts Regulations 2016 will continue to apply despite those Regulations being revoked by paragraph 6 of Schedule 11 to the 2023 Act (commenced by this instrument).

Regulation 8 is a saving provision which sets out when the Utilities Contracts Regulations 2016 (“the 2016 UC Regulations”) will continue to apply despite those Regulations being revoked by paragraph 7 of Schedule 11 to the 2023 Act (commenced by this instrument). Regulation 8 also provides a transitional provision, where the 2016 UC Regulations continue to apply, in respect of the periods of validity of dynamic purchasing systems (established under regulation 52 of the 2016 UC Regulations) and qualification systems (established under regulation 68 of the 2016 UC Regulations). Regulation 9 is a transitional provision in respect of the direct award in special cases of public contracts under section 41 of the 2023 Act where the contract is a repetition of an existing contract procured under the 2016 UC Regulations.