By Debbie Metcalfe LLM MSC MCIPS
The Procurement Act 2023 replaces dynamic purchasing and qualification systems with a single new commercial purchasing tool called a Dynamic Market (DM). DMs can be used and established by contracting authorities, including utilities. They can also establish and use a Utilities Dynamic Market (UDM) for the purpose of the award of utility contracts. DMs and UDMs are generally very similar with slight differences such as the basis of charging fees.
A dynamic market notice is required to be published at various times relating to the
establishment of a DM or UDM, its operation. The exception is the case of a UDM established by a
private utility only, when it ceases to operate (a notice is not required when a UDM set up by a
private utility ceases to operate). This notice does not outline the requirements for public
contracts awarded by reference to a DM or UDM.
The policy intention is for DMs and UDMs to be more flexible than frameworks, with no restrictions on their duration, and with new suppliers able to be admitted throughout their life.
Qualifying Utilities Dynamic Market Notice
A UDM is established for the purpose of the awarding of utility contracts by utilities. A UDM can
be established either by reference to a DM notice or a Qualifying Utilities Dynamic Market
(QUDM) notice.
The purpose of a QUDM notice, like the DM notice, is to notify suppliers of the intention to
establish a UDM. It also will provide details in regards to its establishment, modification and
termination. A QUDM notice differs from a DM notice, in that it must provide as much of the
information which would be required in a tender notice for the award of a contract by reference
to the UDM in question as is available at the time the QUDM notice is published.
Additionally, the QUDM notice (rather than a DM notice) indicates that when a procurement is
commenced by reference to the resultant UDM in future, only members of the UDM will be
notified of any future opportunities to bid for a public contract. In this case a tender will not be published. Instead, the information that is ordinarily provided in a tender notice is required to
be provided directly to the members of the UDM. This also includes suppliers that have applied for
membership of the market (or part of the market) but have yet to be accepted or rejected). In
this circumstance, the tender notice which is to be provided is required to include further details
relevant to the specific procurement in question. It must also include any details that are ordinarily
required for a tender notice that have not already been provided in the QUDM notice.
The Government proposes that the new regime will maintain the effect of Qualification systems
as a separate tool for utilities under similar terms to the Utilities Contracts Regulations 2016. This is to
maintain how utilities currently operate. The disapplication of the tender notice for contracts
awarded by reference to a UDM established using a QUDM notice is how that effect has been
implemented in the new regime.
The Procurement Act: What Changes and What Stays the Same?
Existing qualification systems like Achilles UVDB and Link-Up that were set up prior to the Procurement Act 2023 coming into force will be unaffected.
Procurements that have been started under the old regime will continue to the end of the
contracting lifecycle for that process. In other words the procurement and resulting contract
continue to operate under the old regime until:
- The termination of the contract that is awarded as the result of a process under
the old regime, or, - the decision is reached that no award is to be made; or
- for Dynamic Purchasing Systems (DPS), the termination of the last contract
awarded by reference to the DPS within its lifetime, or - the Qualification System (QS), the end of the last contract awarded by reference
to the QS within its lifetime or where it has an unlimited duration, the end of the last
contract by reference to the QS before its termination.
Therefore, DPS and QS set up under the relevant old Procurement regimes will remain compliant routes to market. In other words it will be permissible to award contracts through these commercial tools set up under the old regime until they expire, are replaced, or cease to exist.
Achilles customers will have the choice of continuing to operate under the existing QSN or via a newly established QUDM. Please contact us to discuss your options including how to set up a new QUDM to support your procurement requirements.
Disclaimer – No Advice.
Achilles offers the THEMIS service, which shares information on procurement laws for general guidance. It’s not legal or professional advice. Achilles isn’t liable for any harm from decisions made based on THEMIS information, whether by the Subscriber or others using the service through them. This includes choices related to legal matters, compliance, or risk management
