The Procurement Act 2023, which received Royal Assent on 26 October 2023 and is expected to be fully in force by early 2025, represents the most significant overhaul of public procurement law in England and Wales since the United Kingdom’s departure from the European Union. The Act replaces a complex patchwork of EU-derived regulations—principally the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—with a single, consolidated statutory framework. One of the Act’s stated objectives is to open up public procurement to new entrants, particularly small and medium-sized enterprises (SMEs), by making the contracting process simpler, more transparent, and more accessible (Cabinet Office, 2022). This essay argues that while the Procurement Act 2023 introduces several mechanisms that genuinely improve clarity for small suppliers—notably through the consolidation of procedural regimes, the creation of a single digital platform, and the imposition of duties regarding transparency—the Act’s capacity to deliver meaningful clarity for SMEs is significantly limited by the breadth of discretion it confers on contracting authorities, the complexity of its remedial provisions, and the persistent structural barriers that small suppliers face in practice, which legislation alone cannot resolve.
The essay proceeds in five sections. First, it examines the pre-existing regulatory complexity that small suppliers confronted under the EU-derived regime. Second, it analyses the key simplification measures introduced by the Act. Third, it critically evaluates the new transparency obligations. Fourth, it identifies provisions within the Act that may perpetuate or introduce new sources of complexity. Fifth, it assesses the structural and practical limitations of legislative reform in this area. The conclusion draws these strands together to offer a qualified answer to the title question.
The Pre-Existing Complexity: Why Reform Was Sought
Understanding whether the 2023 Act improves clarity for small suppliers requires an appreciation of the regime it replaces. The Public Contracts Regulations 2015 (SI 2015/102), which transposed EU Directive 2014/24/EU, governed the award of most public contracts above specified financial thresholds. Alongside these sat the Utilities Contracts Regulations 2016 (SI 2016/274) and the Concession Contracts Regulations 2016 (SI 2016/273), each with distinct procedural requirements, thresholds, and terminology. Small suppliers seeking to engage with public procurement therefore confronted multiple overlapping instruments, each with its own procedural vocabulary and distinct rules on matters such as selection criteria, award procedures, and time limits.
The scale of this complexity was well documented before the Act’s passage. The Cabinet Office’s Green Paper, Transforming Public Procurement (2020), identified that SMEs found the procurement landscape “complex, burdensome and opaque” (Cabinet Office, 2020, p. 8). Empirical evidence from the Federation of Small Businesses consistently indicated that small firms were deterred from bidding for public contracts by the administrative burden of pre-qualification processes, the difficulty of identifying relevant opportunities, and the perceived lack of transparency in award decisions (Federation of Small Businesses, 2019). Arrowsmith (2014) had long argued that the EU procurement directives, while promoting competition and equal treatment, imposed procedural costs that fell disproportionately on smaller firms, which lacked the dedicated compliance infrastructure of larger contractors. The Lord Young Review, Growing Your Business (2013), similarly recommended targeted reforms to make government procurement more accessible to SMEs, including the abolition of pre-qualification questionnaires for lower-value contracts—a reform subsequently implemented in England through the Public Contracts Regulations 2015, regulation 111.
Nevertheless, the fundamental architecture remained fragmented. A small supplier wishing to bid for a utility concession faced a different statutory instrument, different procedural rules, and different remedial provisions from one bidding for a standard public works contract. The result, as Sanchez-Graells (2019) observed, was a regime that was “technically coherent but practically bewildering” for non-specialist participants. It is against this baseline that the 2023 Act must be assessed.
Consolidation and Simplification: The Act’s Central Structural Achievement
The most significant contribution the Procurement Act 2023 makes to clarity is structural: it replaces four statutory instruments with a single Act of Parliament. Sections 1 to 13 establish the scope of the Act, which covers public contracts, utilities contracts, concession contracts, and defence contracts within a unified framework. This consolidation is not merely symbolic. For a small supplier, the practical consequence is that the same core procedural rules now govern procurement across sectors. The Act establishes a single set of procurement procedures (Part 3), a unified set of principles governing how contracting authorities must act (section 12), and a single remedies regime (Part 9). A supplier no longer needs to determine which of several statutory instruments applies before understanding the procedural framework.
The Act’s principles, set out in section 12, further contribute to clarity. Section 12(1) requires contracting authorities to have regard to the importance of delivering “value for money,” treating suppliers equally, acting transparently, and acting with integrity. Notably, section 12(1)(b) directs authorities to have regard to the importance of “maximising public benefit.” While these principles are broadly stated—and their breadth raises questions discussed below—they represent an improvement over the previous position, where the governing principles were derived from EU Treaty obligations (the principles of equal treatment, non-discrimination, transparency, proportionality and mutual recognition) and expressed through case law of the Court of Justice of the European Union (CJEU), supplemented by domestic case law. The consolidation of principles in a domestic statutory provision is, on its face, more accessible to a small supplier than a body of principles scattered across Treaty articles, directives, and judicial decisions in two jurisdictions.
The reduction in the number of procurement procedures also simplifies the landscape. Under the Public Contracts Regulations 2015, contracting authorities could use the open procedure, the restricted procedure, the competitive procedure with negotiation, the competitive dialogue procedure, the innovation partnership, and the negotiated procedure without prior publication (regulations 27–32). The Procurement Act 2023 reduces these to a more streamlined set. Part 3 of the Act provides for the open procedure (section 20), which mirrors the existing open procedure, and the competitive flexible procedure (section 21), which grants contracting authorities discretion to design a bespoke procedure suited to the contract. The direct award procedure is also regulated (sections 41–43). The reduction from six named procedures to a more flexible structure has the potential to simplify matters for small suppliers, who will encounter fewer procedurally distinct routes to contract award.
However, the competitive flexible procedure introduces a significant qualification to this simplification, which is examined in a later section.
Transparency Obligations: The Digital Platform and Pipeline Notices
A central plank of the Act’s claim to improve clarity for small suppliers lies in its transparency provisions. Part 2 of the Act imposes a series of notice and publication requirements designed to ensure that procurement opportunities, decisions, and contract performance information are publicly accessible. Section 95 provides for the establishment of a central digital platform—intended to be a single, publicly accessible online system through which all procurement notices, tender documents, and contract information are published. The Cabinet Office confirmed during the passage of the Bill that this platform is intended to replace existing fragmented systems such as Contracts Finder and Find a Tender (Cabinet Office, 2022).
For small suppliers, the creation of a single digital platform addresses a well-documented practical barrier. Under the previous regime, opportunities were published across multiple portals, and the absence of a single, comprehensive source of information made it difficult for firms without dedicated procurement staff to identify relevant tenders. The Green Paper noted that “many SMEs are simply not aware of the opportunities available” (Cabinet Office, 2020, p. 14). A unified platform, if properly implemented, would reduce the search costs that disproportionately affect smaller firms.
The Act also introduces pipeline notices under section 93. Contracting authorities are required to publish, at least once a year, a pipeline notice setting out the contracts they expect to award in the coming period. This provision is targeted at enabling suppliers—particularly small ones—to plan ahead, prepare capacity, and identify opportunities before the formal tender process begins. The pipeline notice obligation represents a genuinely novel transparency tool. The EU-derived regime imposed no equivalent forward-looking publication duty. As Sanchez-Graells (2021) observed in his early analysis of the Bill, pipeline notices have the potential to be “the single most SME-friendly innovation” in the new regime, because they address the information asymmetry that often prevents small suppliers from competing on equal terms with larger incumbents who have established relationships with contracting authorities.
Further transparency is provided by the requirement for contracting authorities to publish assessment summaries (section 50), which explain how the authority evaluated tenders and reached its award decision. Under the previous regime, unsuccessful bidders were entitled to request feedback under regulation 55 of the Public Contracts Regulations 2015, but the depth and utility of feedback varied considerably. The mandatory publication of assessment summaries should, in principle, allow small suppliers to understand why they were unsuccessful and to improve future bids, or to identify potential grounds for challenge.
Nevertheless, the effectiveness of these transparency provisions depends heavily on implementation. The Act establishes the statutory framework, but the operational quality of the digital platform, the detail and consistency of pipeline notices, and the rigour of assessment summaries will be determined by secondary legislation, guidance, and contracting authority practice. Telles and Butler (2014) have argued that transparency requirements in procurement law often produce “formal compliance without substantive openness,” a risk that applies with equal force here. Whether the Act makes contracting “clearer” for small suppliers therefore depends, to a significant extent, on factors external to the legislation itself.
The Competitive Flexible Procedure: Simplification or New Uncertainty?
While the Act’s structural consolidation and transparency provisions represent genuine improvements, the introduction of the competitive flexible procedure under section 21 introduces a significant new source of potential complexity for small suppliers. Under this procedure, the contracting authority has broad discretion to design the procurement process, including the number of stages, the basis on which suppliers are assessed, and the negotiation or dialogue elements included. The authority must set out the process it intends to follow in the tender notice (section 21(3)), but the procedure itself is not prescriptive.
The policy rationale is sound: enabling authorities to tailor procedures to the nature and complexity of the contract should, in theory, produce more efficient and proportionate procurement. For highly complex contracts, this flexibility avoids the rigidity of the previous named procedures. However, the consequence for small suppliers is that each competitive flexible procedure may be different. A supplier bidding for multiple contracts across different authorities may face a different procedural design each time, with different stages, timelines, and evaluation methodologies. Far from encountering a predictable, standardised process, the small supplier confronts a landscape in which procedural rules are, to a significant degree, bespoke.
This concern was raised during the parliamentary scrutiny of the Procurement Bill. The House of Lords Delegated Powers and Regulatory Reform Committee (2022) noted that the competitive flexible procedure’s breadth gave contracting authorities “very considerable latitude,” and questioned whether adequate safeguards existed to prevent that latitude from disadvantaging less experienced bidders. Arrowsmith (2023), in her analysis of the Act, acknowledged the efficiency benefits of procedural flexibility but cautioned that “flexibility for the buyer is complexity for the supplier,” particularly where the supplier is a small firm without specialist procurement advice.
The Act seeks to mitigate this risk through the requirement in section 21(3) that the contracting authority must describe the procedure in the tender notice. However, a description of a bespoke procedure is not the same as a familiar, standardised process. For an SME encountering public procurement for the first time, navigating a procedure whose structure is explained only in a specific tender notice—rather than being codified in a well-known regulation—may be more daunting, not less. The Act therefore trades one form of complexity (multiple statutory instruments with named procedures) for another (a single Act with a procedure whose content varies by authority and contract). Whether this trade-off benefits small suppliers is genuinely uncertain, and the answer is likely to depend on the quality of guidance, training, and support that accompanies the Act’s implementation.
Discretionary Standards and Broad Duties: The Limits of Statutory Clarity
A further source of complexity for small suppliers lies in the nature of several of the Act’s core obligations, which are framed as broad duties rather than precise rules. Section 12’s requirement that contracting authorities “have regard to” principles such as value for money, public benefit, and equal treatment exemplifies this. The “have regard” formulation is well established in public law as imposing a duty to consider a factor, not a duty to achieve it (see R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) for the analogous duty under equality legislation). For small suppliers, the practical implication is that the principles in section 12 do not create enforceable rights; they create obligations of consideration, the breach of which may be difficult to establish.
Section 12(4) introduces a specific duty to have regard to the fact that “small and medium-sized enterprises may face particular barriers to participation in public procurement.” This provision is explicitly targeted at SMEs and represents a notable legislative acknowledgment of the structural disadvantages small suppliers face. However, the duty is, again, one of “having regard.” It does not require contracting authorities to take specific steps to facilitate SME participation, to set aside a proportion of contracts for small firms, or to impose maximum lot sizes. Compared with the approaches adopted in other jurisdictions—such as the United States’ Small Business Act, which establishes specific set-aside programmes and percentage targets for federal contracts awarded to small businesses (Small Business Act, 15 U.S.C. § 644)—the UK duty is modest. The Act signals concern for SME access without mandating concrete outcomes.
The practical enforceability of the section 12(4) duty is also uncertain. A small supplier who believes that a contracting authority failed to have regard to barriers facing SMEs would need to bring a claim under Part 9 of the Act. Part 9 provides for judicial review-style challenges to procurement decisions, including applications to the Technology and Construction Court (sections 99–104). However, the cost, time, and litigation risk associated with such claims are well-documented barriers for small firms. Under the previous regime, empirical evidence suggested that SMEs were significantly less likely than large firms to bring procurement challenges, largely because of the financial exposure involved (Telles and Butler, 2014). The Act does not fundamentally alter this dynamic. While section 106 introduces automatic suspension of the award of a contract following the issue of proceedings—preserving the position under regulation 95 of the Public Contracts Regulations 2015—the cost of initiating proceedings remains a significant practical barrier. The Act does not introduce any mechanism to reduce the cost of litigation for small suppliers, such as a simplified complaints procedure or a procurement ombudsman with binding powers.
The Cabinet Office did establish a Mystery Shopper service and a Public Procurement Review Service under the previous regime, allowing suppliers to raise concerns informally. However, these mechanisms were non-statutory, non-binding, and limited in scope. The Procurement Act 2023 does not place these mechanisms on a statutory footing or create new, accessible dispute resolution channels tailored to SMEs. This is a notable omission, given the Act’s stated objective of improving access for small suppliers.
Structural and Practical Barriers Beyond the Legislation
Even where the Act succeeds in making the legal framework clearer, the barriers that small suppliers face in public procurement are not exclusively—or even primarily—legal. They are structural, commercial, and informational. A substantial body of literature identifies several persistent obstacles that legislation alone cannot remove.
First, contracting authorities frequently aggregate demand into large contracts to achieve economies of scale. While the Act encourages the division of contracts into lots—section 18 requires authorities to consider whether a contract could be divided into lots and, if it decides not to, to explain why—this is a “consider and explain” duty, not a mandatory division requirement. The Explanatory Notes to the Act confirm that authorities retain discretion over lot strategy (Explanatory Notes to the Procurement Act 2023, para. 110). In practice, as the National Audit Office (2016) found in its review of government procurement, the aggregation of contracts into large bundles has been one of the most significant practical barriers to SME participation. The Act’s approach—encouraging, but not requiring, lot division—may prove insufficient to shift institutional behaviour.
Second, the bidding process itself imposes significant resource costs. Preparing a compliant tender requires time, expertise, and often professional advice. For a firm with ten employees and no dedicated procurement function, the cost of preparing a bid may represent a disproportionate share of turnover, particularly where the probability of success is uncertain. The Act’s transparency provisions may reduce search costs, but they do not reduce bid preparation costs. Flynn and Davis (2016) argue that genuine SME accessibility requires not just legal reform but investment in capacity building, including practical support, training, and simplified tender documentation—measures that fall outside the scope of any statute.
Third, late payment by contracting authorities has been a persistent problem for small suppliers in public supply chains. The Act addresses this indirectly through its transparency provisions: section 69 requires contracting authorities to include payment terms in public contracts and to publish information about payment performance. However, the Act does not impose statutory maximum payment periods, nor does it create a direct enforcement mechanism for late payment. The existing Late Payment of Commercial Debts (Interest) Act 1998 provides for statutory interest on late payments, but its use in practice is limited, particularly by subcontractors who fear damaging relationships with prime contractors. Loader (2015) found that late payment was one of the most commonly cited deterrents to SME participation in public procurement, and the Act’s transparency-based approach, while welcome, is unlikely to resolve the problem fully.
Fourth, there is the question of institutional culture. Even the clearest legislative framework will not improve SME access if contracting authorities default to risk-averse procurement practices that favour large, established firms. The tendency to use past performance and financial standing as selection criteria, while rational from a risk management perspective, systematically disadvantages new and smaller firms. The Act does not prohibit the use of such criteria, though the principles in section 12 and the duty in section 12(4) may encourage authorities to consider their impact. Whether this encouragement translates into behavioural change depends on factors including training, leadership, performance measurement, and political will—none of which can be legislated directly.
The Exclusion and Debarment Regime: Clarity and Complexity
The Act’s provisions on exclusion of suppliers (Part 5, sections 56–64) introduce a reformed debarment list and new grounds for mandatory and discretionary exclusion. The creation of a centralised debarment list, maintained by a Minister of the Crown, is a significant innovation. Under the previous regime, each contracting authority made its own assessment of whether exclusion grounds applied, leading to inconsistent outcomes and duplicative due diligence processes. For small suppliers, the centralised list should reduce the burden of repeatedly demonstrating that they are not subject to exclusion grounds—an administrative process that, under the previous regime, required completing exclusion-related sections of selection questionnaires for each procurement.
However, the exclusion regime also introduces potential complexity. The grounds for discretionary exclusion under section 57 are broad and include matters such as poor performance on prior contracts, national security concerns, and the supplier’s connections to persons subject to exclusion. For a small supplier, particularly one without legal advice, understanding whether discretionary exclusion grounds might apply—and how to respond if an authority raises concerns—may be challenging. The Act provides for a process by which suppliers can make representations before being placed on the debarment list (section 62), but this process presupposes that the supplier understands its rights and has the resources to engage with it.
Moreover, the interaction between the exclusion regime and the broader principles of the Act is not entirely straightforward. Section 12(1)(c) requires authorities to act transparently, and section 12(1)(d) requires them to act with integrity. Whether these principles, in conjunction with the exclusion provisions, create a sufficient framework for fair treatment of small suppliers who are at risk of exclusion is a question that will likely require judicial clarification. The first wave of case law under the new Act will be particularly significant in determining how these provisions operate in practice.
Comparison with Devolved and International Approaches
A brief comparative perspective illuminates the limits of the Act’s approach. In Scotland, the Procurement Reform (Scotland) Act 2014 imposes a duty on contracting authorities to consider how procurement can “facilitate the involvement of small and medium enterprises” (section 9) and requires the publication of procurement strategies. The Scottish approach is broadly similar to the Procurement Act 2023 in its use of facilitative duties rather than mandatory set-asides. However, Scotland’s procurement ecosystem benefits from a more developed institutional support infrastructure, including the Supplier Development Programme, which provides free training and support to SMEs seeking to access public contracts. This suggests that legislative clarity, while necessary, is insufficient without complementary institutional support.
By contrast, the United States’ Small Business Act and the associated Federal Acquisition Regulation establish specific numerical targets for federal contract spending with small businesses, together with dedicated set-aside programmes, mentorship schemes, and a Small Business Administration with enforcement powers. While this model raises its own concerns—including administrative complexity, the risk of fronting arrangements, and potential efficiency losses—it demonstrates that more interventionist approaches to SME access are available. The Procurement Act 2023’s reliance on principles, transparency, and soft duties represents a deliberate policy choice to promote SME access without mandating outcomes, a choice that prioritises flexibility for contracting authorities at the cost of weaker guarantees for small suppliers.
The European Union’s own reformed procurement directives (Directive 2014/24/EU) encouraged the division of contracts into lots through a “comply or explain” mechanism (Article 46), a model that the Procurement Act 2023 broadly follows. Early evidence from EU Member States suggested that this mechanism had a limited impact on the proportion of contracts awarded to SMEs (European Commission, 2019). If the UK’s similar approach produces similar results, the Act’s contribution to SME accessibility may prove modest.
An Assessment of the Act’s Net Contribution to Clarity
Drawing together the foregoing analysis, the Procurement Act 2023’s contribution to clarity for small suppliers is real but bounded. The consolidation of four statutory instruments into a single Act, the creation of a unified digital platform, the introduction of pipeline notices, and the mandatory publication of assessment summaries each represent genuine improvements in the accessibility and intelligibility of the procurement framework. These reforms directly address documented sources of confusion and information asymmetry that disadvantaged small suppliers under the previous regime.
However, three qualifications temper this conclusion. First, the competitive flexible procedure, while efficient for contracting authorities, replaces the predictability of named procedures with bespoke designs that vary across authorities and contracts, potentially increasing the cognitive burden on small suppliers. Second, the Act’s core duties—particularly the duty to have regard to SME barriers in section 12(4) and the duty to consider lot division in section 18—are facilitative rather than mandatory, and their practical impact depends on contracting authority behaviour that the Act can influence but not compel. Third, the Act does not address the most significant structural barriers to SME participation: bid preparation costs, late payment, contract aggregation, risk-averse institutional culture, and the cost of legal challenge. These are barriers that require institutional, financial, and cultural interventions beyond the reach of a single statute.
The Act’s effectiveness for small suppliers will therefore be determined less by its text than by its implementation. The quality of the digital platform, the rigour with which authorities comply with transparency duties, the development of secondary legislation and statutory guidance, and the availability of practical support for SMEs will collectively shape the experience of small suppliers. The Act creates the conditions in which clarity is possible; it does not guarantee it.
Conclusion
The Procurement Act 2023 makes public contracting clearer for small suppliers in important respects: it consolidates a fragmented statutory landscape, introduces meaningful transparency obligations, and creates a legislative architecture that is, on its face, more accessible than the regime it replaces. The statutory acknowledgment in section 12(4) that SMEs face particular barriers is a welcome, if modest, legislative signal. However, the Act’s reliance on broad discretionary standards, the procedural variability inherent in the competitive flexible procedure, and its failure to address the structural and practical barriers that most significantly deter small suppliers from public procurement mean that it falls short of a comprehensive solution. The strongest view is that the Act is a necessary but insufficient reform: it removes certain legal obstacles to clarity while leaving the deeper commercial, institutional, and practical obstacles largely intact. Whether the Act ultimately delivers meaningfully clearer public contracting for small suppliers will depend on the political, institutional, and operational commitments that accompany it—commitments that no statute can make on its own.
References
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