Blog: Bevan Brittan: Procuring social care contracts under the Procurement Act 2023 – is there a challenge?

Kirtpal Kaur-Aujla, Partner

Sieglinde Erwee, Legal Director

Procuring social care contracts under the Procurement Act 2023 – is there a challenge?

A year on from the Procurement Act 2023 (PA 23) coming into force, local authorities have been getting to grips with how to navigate procuring social care contracts under the new regime. This is particularly given the quite marked changes in the process for procuring framework structures.

Whilst many social care services contracts being procured will likely remain within the remit of “light touch services” - such that as has applied under the previous statutory frameworks in theory, local authorities have greater flexibilities in designing and delivering these arrangements - in practice, however, the broad flexibilities enjoyed under Public Contracts Regulations 2015 (PCR) have not been carried over in a ‘like for like’ manner. This does require local authorities to engage in a detailed review and design process when developing new procurements for any type of social care procurement.

Light touch regime frameworks under the PCR did need to comply with certain rules such as the publication of notices and principles of awarding contract (including principles of transparency and equal treatment).  However, so long as these general principles were adhered to, contracting authorities had a great deal of flexibility to create novel structures that were neither fully traditional frameworks nor dynamic purchasing systems but a selective amalgamation of those concepts.

Comparative procurements under PA 23 do however, require local authorities to adhere to a closed and open framework regime, and given some of the restrictions associated with the same, there have been some soundings of potential for amendment to the formal structures to expressly permit light touch flexibility similar to PCR around the establishment of “pseudo” frameworks – a space to watch!

In the meantime, however, there is a growing stream of LAs that have undergone procurements having established structure that align with the flexibilities under PA 23. Taking into account new approaches that are very much unique to social care such as the concept of service user choice, the sharing of knowledge and experience is really quite critical to ensure that these new social care procurements be it residential, domiciliary or any other setting, are not only compliant with PA 23 but allow local authorities to take full advantage of the new contract management tools at their disposal.