From Public Contracts Regulations 2015 to the Procurement Act 2023

While the essential structure of NHS procurements—Selection Questionnaires (SQs) and Invitations to Tender (ITTs)—remains, the new legislation introduces multiple refinements aimed at improving flexibility, transparency, and value for money across all public procurement, including the NHS.

1. From Public Contracts Regulations 2015 to the Procurement Act 2023

• Consolidation of Regulations
  The Procurement Act 2023 replaces and consolidates the prior rules (including the Public Contracts Regulations 2015) into a single, modernized regime. NHS buyers will follow these new statutory requirements, which aim to simplify processes and ensure a consistent approach across the public sector.

• Emphasis on Flexibility
  One of the Act’s stated goals is to allow contracting authorities, including NHS bodies, more flexibility in designing their procurement procedures. While standard Selection Questionnaires and ITTs will still exist, procurers may customize them more easily, provided they maintain transparency and fairness.

• Increased Transparency
  The new regime elevates transparency obligations at every stage of procurement. This includes earlier publication of pipeline notices, greater disclosure of key decisions, and expanded data reporting. Consequently, NHS tender documents and portals will likely contain more detailed information about upcoming contracts and the evaluation process.

2. Standard Documentation Under the New Regime

• Selection Questionnaires (SQs)
  Although historically called PQQs, the post-2015 move to “SQs” continues under the Procurement Act 2023. These remain the primary tool for NHS trusts to assess suitability factors—like financial capacity, technical capability, and compliance with statutory requirements. However, the Act’s flexibility provisions may allow trusts to tailor selection criteria more freely (e.g., focusing on specific risk factors or strategic policy objectives).

• Invitation to Tender (ITT)
  As before, an ITT outlines the detailed requirements, evaluation criteria, and contractual terms. Under the new Act, trusts may leverage more innovative procurement routes (e.g., competitive dialogue or negotiated procedures) without having to fit rigid procedural templates. This could result in a more diverse range of ITT formats and requirements.

3. NHS-Specific Considerations

• Alignment with NHS Terms & Conditions
  Standard NHS T&Cs will continue to form the backbone of contract terms. However, the Act encourages broader cross-departmental alignment, so expect updated frameworks or templates that incorporate both NHS policy (e.g., patient data security) and the new legal obligations (e.g., enhanced transparency).

• Social Value and Broader Objectives
  The Procurement Act 2023 reinforces the focus on strategic public procurement outcomes, including social value, environmental targets, and innovation. NHS bodies may embed even more robust social value and sustainability questions in their SQs and ITTs, reflecting both the Act’s and NHS England’s policy directions.

• Governance and Accountability
  Internal oversight measures—such as the NHS Commercial and Procurement Standards—will be adjusted to incorporate the new legislation. Expect stronger auditing and compliance checks to verify that each procurement process aligns with the Act’s principles.

4. Changes in Process and Documentation

1. Pipeline and Planning

   • Publication of Procurement Pipelines: Contracting authorities (including NHS trusts) must publish pipeline notices for procurements above certain thresholds. Bidders can monitor upcoming opportunities with clearer foresight.

2. Evaluation Criteria

   • Flexibility in Award Criteria: The Act allows contracting authorities greater freedom in choosing evaluation methods, provided they are transparent and proportional. NHS buyers can adapt criteria to reflect NHS priorities, potentially including local health outcomes or workforce development.

3. Digital Platforms

   • Centralized or Enhanced E-Procurement: Many anticipate the introduction (or expansion) of a single digital platform for public notices. NHS trusts that use e-tendering portals (Atamis, Proactis, etc.) will integrate new transparency requirements and possibly standardized forms dictated by central government.

4. Remedies and Challenges

   • Streamlined Dispute Resolution: The Act seeks to simplify and clarify procedures for suppliers to challenge a procurement outcome. NHS contracting authorities must ensure their documentation (SQs, ITTs) and evaluation processes are robust, transparent, and well-documented.

5. Practical Tips for Suppliers

• Monitor the Transition: While the Procurement Act 2023 is in force, many of its specific details (secondary legislation, guidance notes, etc.) will roll out in phases. Keep an eye on updates from NHS England and Crown Commercial Service.

• Get Familiar with New Formats: New standardized templates or modules may appear in e-procurement portals, reflecting updated rules around selection, transparency, and social value.

• Strengthen Compliance and Social Value Propositions: The Act’s emphasis on strategic, value-driven procurement means demonstrating alignment with NHS priorities—like sustainability and local community benefits—could be more critical than ever.

• Engage Early: With the push for publishing pipelines, suppliers can prepare well in advance, refining their capability statements and compliance documentation to align with anticipated NHS requirements.

Preparation is Everything

The Procurement Act 2023 modernises and consolidates the UK’s public procurement landscape, including NHS purchasing. While the familiar structure of Selection Questionnaires (SQs) and Invitation to Tender (ITT) documents remains, the new legal framework grants contracting authorities like the NHS greater flexibility to design procurements—and imposes heightened transparency and accountability measures. Suppliers aiming to do business with the NHS should keep abreast of evolving guidance, adapt to new document formats, and continue emphasizing social value contributions and compliance in their bids.

Ultimately, the changes introduced by the Procurement Act 2023 are designed to streamline processes, foster innovation, and ensure that public funds—including NHS budgets—are deployed to deliver the best overall value for patients, staff, and communities.