Procurement Act 2023: Anticipating and avoiding procurement disputes

Eight months have now passed since the Procurement Act 2023 (“the Act”) came into force on 24 February 2025, representing one of the most significant overhauls of the UK’s public procurement regime in a decade. For contracting authorities, the new regime offers opportunities for simplification and flexibility, but it also introduces fresh obligations – and with them, new litigation risks.

Although there have not yet been any significant legal cases that have settled key issues under the Act, the potential areas of challenge are already becoming clear. In this article, we set out some of the key provisions and the kinds of disputes we expect to arise, together with practical steps authorities and suppliers can take to protect their position.

Assessment summaries: greater transparency, greater risk

Transparency remains a cornerstone of the new regime. Authorities must now issue assessment summaries setting out transparent and detailed feedback to suppliers as to how each tender met (or failed) each award criterion. These replace traditional standstill letters and are likely to be the first point at which a supplier identifies potential grounds for a challenge. Whilst the assessment summaries are broadly similar to the previous standstill letters in terms of the information that they cover, the key difference is that now there is no longer a requirement to include a direct comparison between the successful supplier’s assessed tender and the unsuccessful supplier – instead a contracting authority has to provide a copy of the information that it has provided to the successful supplier (redacted if required) explaining how its tender was scored against each criteria. This will likely cause issues either relating to disclosure of confidential information or will relate to unsuccessful supplier challenging the scoring.

Whilst the intention is to improve understanding, the increased level of detail gives disappointed suppliers more material to scrutinise and contest. Disputes may arise where suppliers allege inconsistencies or variations between evaluators.

Practical tip: Authorities should invest time in drafting robust evaluation and moderation criteria that set out a clear rationale as to how each criterion is to be scored, including relevant information from the tender which will be scored and the weighting or importance of each criterion.

The eight-working-day standstill and automatic suspension

One of the most practical changes is to standstill periods. Under section 101, authorities must now observe an eight-working-day standstill following the publication of a contract award notice before entering into a contract.

This change has two key implications for disputes:

• The eight-working day standstill now provides a defined, certain period for both bidders and authorities rather than working from the date of a standstill letter.
• Bidders must now act more quickly, as if they wish to set aside a contract award, they must do so within the standstill period. .
• If proceedings are issued during this period, the contract award is automatically suspended.

It should now be easier for parties to calculate the timing of the standstill period as time runs from the publication of the contract award notice rather than the date of the standstill letter. Challenges are likely to arise however, over the question of whether a contracting authority should extend the standstill if an unsuccessful bidder raises a complaint.

Practical tip: Authorities should record standstill expiry dates in their systems immediately on issuing assessment summaries. Bidders should engage legal teams early if a challenge is contemplated.

The new statutory test for lifting automatic suspension

Where a claim is issued in the standstill period, authorities can apply to court to lift the automatic suspension. The Act introduces a new statutory test, requiring the court to consider the following issues when deciding whether to grant the Authorities’ application to lift the automatic suspension:

• Public interest – Whether it is in the public interest in upholding the principle that public contracts are awarded in accordance with the law and if it is in the public interest to avoid delays in the supply of goods, services or works.
• Adequacy of damages – Whether damages are instead an adequate remedy for the claimant.
• Other matters – Whether there are any other matters that the court may considers appropriate in the circumstances

Whilst the new statutory test requires the court to consider other issues beyond the adequacy of damages, it is yet to be seen how much weight a court will give to these additional factors in practice. However, we anticipate suppliers resisting applications to lift suspensions by arguing that damages are insufficient where market access or reputational harm is at stake.

Publication of contract performance notices and KPI reporting

Another likely area of challenge under the Procurement Act 2023 will stem from the new obligations around transparency in contract performance. Contracting authorities are now required to publish contract performance notices, which include details of how suppliers are performing against specified key performance indicators (KPIs). While this measure is intended to improve accountability and value for money, it also opens a new front for supplier disputes.

Suppliers may challenge both the accuracy and fairness of the information published in these notices, particularly where performance metrics are perceived as subjective or not reflective of contextual factors such as changes in project scope, authority delays, or unforeseen events. Because the publication of such information places supplier performance in the public domain, any perceived inaccuracies may cause reputational damage – providing a strong incentive for suppliers to dispute unfavourable reports.

The mandatory reporting of KPIs further increases exposure. Authorities will need to ensure KPIs are measurable, objective, and aligned with contractual obligations. Disputes are likely to arise where suppliers argue that KPIs were ill-defined, inconsistently applied, or updated without proper consultation.

Supplier exclusion and debarment list

A further complication arises from the link between performance reporting and exclusion grounds. Poor performance disclosed in contract performance notices may later be relied upon to justify a discretionary exclusion under the Act. Suppliers facing potential exclusion from future procurements are therefore expected to challenge the underlying performance assessments – both to correct the record and to avoid reputational or commercial consequences. We anticipate an uptick in pre-action correspondence and judicial reviews seeking to contest whether a contracting authority acted reasonably in deeming a breach ‘sufficiently serious’ for discretionary exclusion purposes.

Practical tip: Authorities should ensure that performance reporting processes are fair, evidence-based, and consistently applied across contracts. Draft KPIs with clear definitions and agreed measurement methods, maintain contemporaneous records of performance discussions, and consider allowing suppliers to comment on draft performance notices before publication. This proactive approach will help mitigate both reputational disputes and the risk of subsequent exclusion challenges.

Practical advice for managing procurement risk

For authorities:

• Ensure your team understand the new Act before embarking on the tender.
• Prepare a clear and detailed criteria in tender documentation – avoid ambiguity.
• Train evaluators to ensure scoring notes are consistent, objective, detailed and defensible.
• Maintain a full audit trail, including contemporaneous evaluation records.
• Provide comprehensive Assessment Summaries to both successful and unsuccessful bidders, clearly setting out criteria scores and an explanation.
• Plan carefully for the eight-working-day standstill – never sign early

For suppliers:

• Engage with contracting authorities pre-tender to understand their requirements.
• Understand the change from “Most Economically Advantageous Tender” to “most Advantageous Tender” – this change allows authorities to consider issues such as social value, and innovation, as well as price.
• Understand the expanded exclusion and debarment criteria, and make sure you don’t fall foul!
•  Track deadlines rigorously from the moment notices are published.
• Understand the authority’s new obligation to provide increased disclosure at the Assessment Summary stage and use this to quickly identify if you have a potential claim. .
• Consider strategic objectives – suspension, set-aside or damages – before issuing proceedings.

Conclusion

The Procurement Act 2023 represents a decisive shift in public procurement regulation. Embedding compliance, training staff and seeking early advice will be crucial in staying one step ahead and avoiding costly mistakes.

If you need advice on avoiding or resolving a procurement dispute, our team is here to help. We have extensive experience acting for authorities and suppliers across the UK.