Transitional and saving arrangements: which rules apply to procurements and contracts that straddle the Procurement Act 2023

The key facts

• Transitional and saving arrangements determine how the changeover from the previous legislation to the Procurement Act 2023 is managed and effected by contracting authorities.
• They determine how procurements which straddle the implementation date of the Act are to be carried out and which legislation applies.
• The stated intent is that implementation causes as little disruption as possible for procurements already underway and contracts already awarded when the Act came into force.
• The rules are set out in the Procurement Act (Commencement No. 3 and Transitional and Saving) Regulations 2024.
• They are also set out in the Procurement Act 2023 (Commencement No. 3 and Transitional and Saving Provisions) (Amendment) Regulations 2024.
• Those regulations determine which legislation applies to ongoing procurements and to contracts awarded under the previous legislation.
• They also determine how those procurements and contracts are to be managed.
• The guidance is technical and aimed at procurement practitioners and commercial policy leads in contracting authorities.

What this guidance is and who it applies to

This document is part of the technical guidance series supporting the Procurement Act 2023. It explains the transitional and saving arrangements, which are the rules governing the handover from the previous procurement legislation to the new Act. It is aimed at procurement practitioners and commercial policy leads in contracting authorities, and it should be read alongside the Act and its associated regulations.

It applies to any contracting authority that was procuring, or had already awarded contracts, when the Act came into force. In practice that is almost every contracting authority, since public bodies typically hold long running agreements with multi year terms.

Suppliers holding contracts awarded under the previous legislation are equally affected. The rules that govern how their contract is managed, varied and extended are determined by these arrangements, not by whichever regime happens to be current.

What the arrangements do

The guidance describes the function of the transitional and saving arrangements directly. They determine how the changeover from the previous legislation to the Procurement Act 2023 is managed and effected by contracting authorities. They answer two related questions that arise whenever a legal regime is replaced.

The first question concerns procurements in flight. A competition started under the old rules that had not concluded when the Act came into force needs to know which legislation governs it. The arrangements determine how procurements which straddle the implementation date of the Act are to be carried out and which legislation applies to them.

The second concerns contracts already awarded. A contract entered into under the previous legislation continues to exist and to be managed for years afterwards. The regulations determine which legislation applies to those contracts and how they are to be managed, which covers the ongoing decisions that contract managers make rather than only the original award.

The stated intent behind both is continuity. The guidance says the aim is that implementation of the Act will cause as little disruption as possible for procurements which are already underway, and contracts which have already been awarded, when the Act came into force.

Where the rules sit

The detail is not in the Act itself. The guidance identifies two instruments: the Procurement Act (Commencement No. 3 and Transitional and Saving) Regulations 2024, and the Procurement Act 2023 (Commencement No. 3 and Transitional and Saving Provisions) (Amendment) Regulations 2024.

Together those regulations set out the rules for which legislation applies to ongoing procurements and to contracts awarded under the previous legislation, and they determine how those procurements and contracts are to be managed. Anyone resolving a transitional question needs to work from those instruments rather than from the Act alone.

The existence of an amending instrument is itself worth noting. It means the position was refined after the original commencement regulations were made, and practitioners should be sure they are reading the arrangements as amended rather than an earlier version that circulated during implementation planning.

Applying it in practice

The practical consequence is that many contracting authorities operate two regimes at once for an extended period. New procurements run under the Act while a substantial legacy estate continues under the previous legislation. That dual running is not a temporary inconvenience of a few months. Long term contracts can keep the old rules relevant for years.

The most important discipline is knowing, for every live contract, which regime governs it. That should be recorded on the contract file rather than inferred from the award date by whoever happens to be dealing with a question. Contract managers who joined after implementation will have no institutional memory of the changeover and need the answer written down.

Extensions and variations are where the risk concentrates. A decision to extend or vary a legacy contract is made now, but the rules governing whether and how it can be done may be the previous ones. Applying current thinking to a legacy contract, or legacy assumptions to a new one, is the classic transitional error and it is made in good faith by people who simply do not realise two rule sets are running side by side.

The final point is training. Teams need to be able to recognise a transitional question and know where to go with it. That is a modest amount of awareness training with a high return, because these questions arrive unannounced in the middle of routine contract management.

How eSourcing Data helps

Dual running is fundamentally a record keeping problem. eSourcing Data holds each procurement and contract with its award date and the regime it was carried out under, so the governing rules for any given agreement are visible on the record rather than being worked out afresh each time a question arises.

Because the platform carries the procurement history through into contract management, decisions on variations and extensions are made against the original context. A contract manager considering a change to a legacy agreement can see how it was awarded and under which regime, which is precisely the information needed to avoid applying the wrong rules to the decision.

Portfolio reporting gives commercial leads the overall picture: how much of the estate still sits under the previous legislation, when those contracts expire, and which recompetitions will bring them onto the current regime. That turns the transition from an open ended uncertainty into a tracked and shrinking list.

What to do about it

1. 1Work from the Commencement No. 3 and Transitional and Saving Regulations 2024 and the 2024 amending regulations when resolving any transitional question.
2. 2Record on every contract file which legislative regime governs the contract.
3. 3Flag legacy contracts clearly so contract managers do not apply current rules by default.
4. 4Check the governing regime before agreeing any extension or variation to an existing contract.
5. 5Brief contract managers who joined after implementation, since they will have no memory of the changeover.
6. 6Track the proportion of the contract estate still under the previous legislation and when it expires.
7. 7Confirm you are reading the transitional arrangements as amended rather than an earlier implementation era version.