Councils are no longer waiting for the Procurement Act 2023
The Procurement Act 2023 is no longer a future reform, a training topic or a policy change waiting to land. It is now part of day-to-day public procurement practice across contracting authorities.
For councils, the issue is no longer whether the Act is new. The more difficult question is whether procurement teams, client departments, governance boards and senior leaders are confident enough to use the regime properly.
Across local government, there remains a noticeable tendency to default to familiar approaches. Open tender processes are still often treated as the safest option. Framework call-offs remain attractive because they feel procedurally contained. The competitive flexible procedure is sometimes viewed as useful in theory, but risky in practice. Preliminary market engagement may be recognised as valuable, but it can still be avoided because officers are concerned about perception, challenge, workload or governance scrutiny.
This matters because the Act was not intended simply to rename old processes. It created a different operating environment. The competitive flexible procedure gives contracting authorities more ability to design a process that fits the requirement, provided they comply with the Act, observe the procurement objectives and maintain transparency, proportionality and equal treatment.
The challenge for councils is therefore not legal awareness alone. It is operational confidence.
This is now a confidence and capability gap
Many councils have invested time in training, policy updates, template changes and awareness sessions. That work was necessary, but it is not sufficient.
Knowing that a route exists is different from being able to use it confidently.
A procurement officer may understand that the competitive flexible procedure can be adapted for a complex service requirement. That does not mean the wider organisation is ready to approve a designed process involving shortlisting, dialogue, negotiation, demonstrations, site visits, pilots, staged submissions or refined requirements.
A contract manager may understand that early market engagement can improve the specification. That does not mean they feel able to structure supplier conversations, document decisions, protect competition and reassure internal stakeholders that the process is controlled.
A senior manager may support innovation in principle. That does not mean they will accept a procurement strategy that looks materially different from the process used under the Public Contracts Regulations 2015.
This is the gap now emerging across local government. It is not a lack of access to guidance. It is a lack of confidence in applying judgement.
Why councils are still defaulting to old routes
There are several practical reasons why councils continue to rely on familiar approaches.
First, old routes feel safer.
Under the previous regime, officers became used to established labels, such as open procedure, restricted procedure, competitive procedure with negotiation and competitive dialogue. These routes had recognised structures. They could be explained to governance boards. They were embedded in templates, standing orders, approval reports and legal advice. Even where they were not perfect, they were familiar.
The Procurement Act 2023 has reduced some of that procedural prescription. The restricted procedure, competitive procedure with negotiation and competitive dialogue no longer exist as separate named procedures, although similar approaches can be designed within the competitive flexible procedure where appropriate.
That creates opportunity, but it also creates hesitation. When the route is no longer pre-packaged, the authority must explain why the chosen design is suitable. That requires commercial judgement, documented reasoning and governance confidence.
Second, councils are under significant resource pressure.
Procurement teams are often managing live tenders, urgent service requirements, contract extensions, supplier issues, direct award requests, framework activity, internal training, policy updates and reporting demands at the same time. The additional notice requirements, central digital platform processes, pipeline visibility and internal assurance expectations all require time and discipline.
For larger contracting authorities, pipeline notices are now part of the operating environment where the relevant statutory thresholds apply. This is positive policy, particularly where it gives the market earlier visibility of future opportunities. Operationally, however, it requires councils to improve procurement planning, data capture and internal communication.
If client departments do not provide accurate forward plans, procurement teams cannot create reliable pipelines. If governance decisions are made late, notices become reactive. If systems and processes are not aligned, reporting becomes a compliance burden rather than a strategic tool.
Third, many governance processes have not yet caught up.
A procurement strategy using an open procedure is usually easier to approve because decision-makers understand what will happen. A competitive flexible procedure requires more explanation. The report must describe the stages, the reason for those stages, the treatment of suppliers, the evaluation approach, the transparency position and the controls around negotiation or dialogue if those features are included.
Where governance boards are not comfortable with the new regime, they may ask for the lowest perceived risk route. That can push officers back towards old habits, even when a more flexible process would produce a better result.
Fourth, legal and audit concerns influence behaviour.
Councils are right to be cautious. Public procurement involves public money, statutory duties, reputational exposure and potential challenge. However, caution can become avoidance. A process is not safer merely because it is familiar. A poorly designed open procedure can create risk. A rushed framework call-off can create risk. A specification built without market understanding can create risk. A direct award used because the authority did not plan early enough can create significant risk.
The correct question is not which route feels least controversial. The correct question is which route is lawful, proportionate, transparent and best suited to achieving the required outcome.
The Act requires more judgement, not less control
One of the most important cultural shifts under the Procurement Act 2023 is the move from rules-based procurement to judgement-based procurement.
That does not mean councils have less control. It means they need better control.
Under a more prescriptive regime, officers could often justify a process by pointing to a recognised route. Under the current regime, particularly when using the competitive flexible procedure, authorities must be able to justify the design of the process itself.
That judgement should not be informal. It should be structured, evidenced and approved.
A council should be able to explain:
Why the selected procedure is appropriate
How the design reflects the nature, complexity and value of the requirement
How the process supports value for money and good public outcomes
How suppliers will be treated fairly
How conflicts, clarifications and changes will be managed
How market engagement has informed the strategy
How the evaluation model links to the specification and contract outcomes
How transparency requirements will be met
How the audit trail will evidence each key decision
This is not bureaucracy for its own sake. It is the discipline that allows flexibility to be used safely.
The benefits of flexible procedures are significant
The risk of over-caution is that councils miss the practical benefits the Act was designed to support.
Used properly, the competitive flexible procedure can help authorities move away from procurement processes that are too rigid for complex requirements and too burdensome for straightforward ones.
For complex services, it can allow a council to test the market before locking down its final approach. It can support staged submissions, negotiation, dialogue, demonstrations, site visits, pilots or other proportionate process features.
For innovative or developing markets, it can reduce the risk of specifying the wrong solution too early. This is particularly relevant in areas such as digital systems, care technology, environmental services, community-based provision, construction innovation and service transformation.
For local markets, better market engagement and proportionate procedure design can reduce unnecessary barriers to entry. SMEs and voluntary, community and social enterprises often struggle with overly long documents, disproportionate selection requirements and unclear pipelines. Flexible procedure design can help councils create processes that are still robust, but more accessible.
For internal clients, a better-designed procurement can produce stronger specifications, more realistic pricing, better risk allocation and improved contract management outcomes.
For contract managers, it can create a clearer link between what was tested during procurement and what must be delivered during the contract.
The point is not that every procurement should be flexible, negotiated or complex. That would be a misunderstanding of the Act. The point is that councils should not default to rigid routes where the requirement, market and risk profile call for something more tailored.
The risk of poor application is real
There are genuine risks in using the new routes poorly.
A competitive flexible procedure that is not properly designed can create confusion for suppliers. If stages are unclear, evaluation rules are incomplete, negotiation boundaries are vague or documentation is inconsistent, the authority may increase the risk of challenge.
Market engagement that is not properly managed can create perceived advantage. If one supplier receives information that others do not, or if engagement shapes the specification in a way that favours a particular provider, the process may be vulnerable.
A process that changes direction without proper transparency can undermine supplier confidence. If the authority reserves rights too broadly or fails to explain how the process will operate, flexibility can begin to look like discretion without control.
A governance report that simply says competitive flexible procedure will be used is unlikely to be enough. The authority needs to show how and why.
These risks are not reasons to avoid the new routes. They are reasons to improve capability.
The risk of doing nothing is also real
Councils should be equally clear about the risk of not adapting.
If authorities continue to default to familiar approaches, they may lose some of the practical value of the new regime. The result may be compliant procurement on paper, but weaker outcomes in practice.
The risks include:
Specifications that are not informed by the market
Procurement routes that do not fit the requirement
Overly burdensome processes that deter SMEs
Repeated use of frameworks without sufficient consideration of value or suitability
Late procurement planning leading to avoidable extensions or direct award pressure
Evaluation models that do not test what matters
Contracts that are difficult to manage because the procurement did not clarify delivery expectations
Reduced innovation because suppliers are not given the right opportunity to propose better solutions
A culture where officers feel safer repeating old approaches than exercising informed commercial judgement
In a local authority context, these are not abstract risks. They affect service quality, budget control, market resilience, social value, auditability and public confidence.
Operational pressure is shaping behaviour
The practical reality is that many procurement teams are trying to implement a more judgement-based regime without additional capacity.
The Act has increased the importance of planning. Pipeline visibility, notices, transparency, supplier information and contract management data all require more structured commercial administration. Compliance is no longer concentrated only around the tender exercise. It now extends across planning, procedure design, procurement delivery and contract management.
For councils, this creates pressure in several places.
Client departments need to identify requirements earlier.
Procurement teams need better information from budget holders and service leads.
Governance boards need to consider procurement strategy earlier, not only at the point of award.
Legal teams need to advise on procedure design, not only contract terms and challenge risk.
Finance teams need to support affordability, indexation, risk allocation and whole-life cost analysis.
Contract managers need to be involved before the procurement documents are finalised.
Senior leaders need oversight of the commercial pipeline, not only high-value exceptions.
Where these elements are missing, officers are more likely to choose familiar routes because they do not have the time or support to design anything else.
Flexible procurement requires earlier collaboration
One reason councils struggle with the new routes is that they are sometimes treated as procurement team issues.
They are not.
A competitive flexible procedure cannot be designed properly by procurement in isolation. It requires input from the service area, legal, finance, contract management, technical specialists and, where relevant, commissioners, residents’ representatives or partner organisations.
The service area must explain the outcome required.
Procurement must translate that requirement into a lawful and competitive process.
Legal must help identify risk and ensure the process is defensible.
Finance must test affordability and commercial assumptions.
Contract management must ensure the procurement creates a contract that can be managed.
Governance must approve the strategy with a clear understanding of the rationale.
This is particularly important where dialogue, negotiation, demonstrations or pilots are being considered. These features can be useful, but only where the authority has clear rules, trained officers and a documented process.
Market engagement should become normal practice
Preliminary market engagement is one of the most useful tools available to councils, but it remains underused in some areas.
The hesitation is understandable. Officers may worry that suppliers will gain an unfair advantage. Client departments may worry that engagement will delay the procurement. Some governance boards may still see supplier conversations as risky.
The better view is that properly managed market engagement reduces risk.
It can help the council understand:
Whether the requirement is realistic
Whether the market has capacity
Whether the pricing model is viable
Whether the specification is unnecessarily restrictive
Whether SMEs can compete
Whether lots would improve access or resilience
Whether innovation is available
Whether the proposed contract term is commercially attractive
Whether social value requirements are proportionate and deliverable
Whether the evaluation model tests the right things
Avoiding market engagement does not make a procurement safer. It can simply mean the authority discovers problems later, when the tender is live, suppliers are asking difficult clarification questions and timescales are already compressed.
Governance must enable good judgement
Governance has a central role in closing the confidence gap.
In some councils, governance is still built around approval of a route rather than approval of a reasoned commercial strategy. That is a problem. Under the current regime, the quality of the reasoning matters.
A good procurement strategy should not simply state the chosen procedure. It should explain the commercial problem, market context, risk profile and rationale for the proposed process.
Governance boards should expect to see:
A clear description of the requirement and intended outcomes
Evidence of market analysis or market engagement
An explanation of the proposed route to market
A proportionality assessment
A summary of key procurement risks and mitigations
A clear evaluation strategy
A realistic timetable
Confirmation of notice and transparency requirements
Consideration of contract management implications
A record of legal, finance and service input
This does not need to be excessive for every procurement. Proportionality remains important. However, the authority should be able to demonstrate that it has made an informed decision rather than defaulting to habit.
Leadership must set the tone
Senior leaders have a direct influence on whether teams use the Act with confidence.
If leadership messages focus only on avoiding challenge, officers will naturally choose the most familiar process. If leadership supports well-reasoned commercial judgement, officers are more likely to use the regime properly.
This does not mean encouraging risk-taking for its own sake. It means distinguishing between uncontrolled risk and managed flexibility.
A well-designed competitive flexible procedure is not reckless.
A structured market engagement exercise is not improper.
A proportionate process for SMEs is not a lowering of standards.
A procurement strategy that differs from historical templates is not automatically higher risk.
Leadership should make clear that the council expects procurement decisions to be lawful, evidenced, proportionate and outcome-focused. That expectation should apply whether the authority uses an open procedure, a competitive flexible procedure, a framework, a dynamic market or a justified direct award.
Capability gaps are becoming more visible
The first phase of implementation focused heavily on awareness. Many officers attended introductory sessions, completed knowledge modules and reviewed guidance. The next phase needs to focus on applied capability.
Councils need people who can design processes, not just identify routes.
That includes capability in:
Drafting procurement strategies
Designing competitive flexible procedures
Running preliminary market engagement
Writing outcome-based specifications
Structuring evaluation criteria
Managing moderation and audit trails
Drafting clear supplier instructions
Understanding transparency and notice requirements
Handling clarifications and process changes
Linking procurement to contract management
Advising client departments with confidence
Training should therefore move beyond what has changed and into how to apply judgement in a live council environment.
Prestige Commercial Consulting has developed practical procurement resources and learning content for this type of applied capability. The PCC learning portal is designed to support procurement and commercial understanding in a structured, accessible format, rather than treating procurement law as abstract theory.
What councils should be doing now
Councils do not need to redesign everything at once. They do need a deliberate plan to build confidence and consistency.
Review recent procurements.
Look at decisions made since the Act came into force. Identify how often the council has used open procedure, competitive flexible procedure, frameworks, direct awards and other routes. Consider whether those choices were driven by suitability or familiarity.
Assess the pipeline.
The procurement pipeline should not be a static spreadsheet used only for reporting. It should be a management tool. Identify forthcoming procurements where early market engagement or flexible procedure design could materially improve outcomes.
Create internal procedure design guidance.
Officers need practical prompts. A short internal guide can help teams decide when a straightforward open procedure is appropriate, when a two-stage competitive flexible procedure may be better, and when more complex features such as negotiation, dialogue, demonstration or pilot activity may be justified.
Update governance report templates.
Templates should require officers to explain the rationale for the proposed route, the market position, proportionality, evaluation approach, transparency requirements and contract management implications.
Train governance boards.
Members of procurement boards, senior leadership teams and decision panels do not need to become procurement specialists, but they do need enough understanding to challenge constructively. If decision-makers only recognise old routes, they will unintentionally discourage lawful flexibility.
Build a small number of model examples.
Councils should create internal examples of well-designed procurement strategies under the new regime. These can include a simple open procedure, a two-stage competitive flexible procedure, a market engagement plan and a more complex flexible procedure involving negotiation or demonstrations.
Strengthen the audit trail.
The more flexible the process, the more important the record. Authorities should document why they selected the procedure, how stages were designed, what information was shared, how suppliers were treated and how decisions were made.
Involve contract managers earlier.
The procurement process should not be separated from delivery. Contract managers should help shape specifications, performance indicators, reporting requirements, mobilisation plans and remedies before the tender is issued.
Use external support where capacity or confidence is limited.
External support should not replace internal ownership. It can, however, help councils develop strategies, review documents, test procedure design, strengthen governance reports and build internal confidence. Practical resources are available through the Prestige Commercial Consulting support hub, including material intended to support procurement decision-making and operational delivery.
Poor application and underuse require different responses
It is important to separate two issues.
Poor application requires control.
Underuse requires confidence.
If a council is using flexible routes without clear rules, proper documentation or transparent process design, the answer is stronger governance, better training and improved assurance.
If a council is avoiding flexible routes altogether, the answer is not simply more caution. The answer is capability building, leadership support and practical examples that show how the routes can be used safely.
Both issues can exist in the same organisation. Some teams may be overconfident and under-documenting. Others may be overly cautious and defaulting to open tender or framework routes even where a tailored process would be more appropriate.
A mature procurement function needs to manage both behaviours.
The commercial case for adapting
The strongest argument for using the Act properly is not legal compliance. It is commercial performance.
Councils are operating in a difficult environment. Budgets are constrained. Demand is high. Supplier markets are uneven. Inflationary pressure, workforce shortages, social value expectations, sustainability requirements and local economic priorities all affect procurement decisions.
In that context, route-to-market judgement matters.
A badly chosen route can reduce competition.
A poorly designed specification can increase prices.
A weak evaluation model can reward the wrong supplier.
A lack of market engagement can produce unrealistic bids.
An excessive process can deter SMEs.
A rushed procurement can create contract management problems for years.
The Procurement Act 2023 gives councils tools to respond more intelligently to these issues. Those tools only create value if authorities are willing and able to use them.
A practical operating model for councils
Councils should now be moving towards a more mature operating model for Procurement Act 2023 delivery.
That model should include:
Clear ownership of procurement pipeline data
Early triage of upcoming requirements
Documented route-to-market decisions
Proportionate market engagement plans
Internal guidance on competitive flexible procedure design
Template procurement strategies aligned to the Act
Governance reports that focus on judgement and evidence
Training for procurement officers, commissioners and contract managers
Senior leadership oversight of high-risk and high-value activity
Post-procurement lessons learned reviews
This is not about making procurement slower. In many cases, better planning and clearer strategy will reduce delay because issues are resolved before the tender is live.
Procurement teams need permission to exercise judgement
Many procurement officers are capable of using the new regime well. What they often need is organisational permission.
That permission comes from leadership, governance, policy and culture.
It is difficult for an officer to recommend a tailored process if every internal approval conversation pushes them back towards what was done previously. It is difficult to run market engagement if service areas involve procurement too late. It is difficult to design a proportionate process if internal templates remain built around old procedures. It is difficult to innovate if every deviation from historic practice is treated as a risk rather than a decision requiring justification.
Councils should therefore ask themselves a direct question:
Are we enabling procurement professionals to exercise informed judgement, or are we training them on a new Act while still governing them through old habits?
Where external support can add value
External procurement support is most useful when it helps councils build internal capability rather than creating dependency.
For example, support may be valuable where a council needs to:
Review its procurement pipeline and identify suitable route-to-market options
Develop a procurement strategy for a complex service
Design a competitive flexible procedure
Prepare market engagement documentation
Review tender documents for clarity and proportionality
Support evaluation and moderation planning
Strengthen governance reports
Create practical internal guidance
Train procurement, commissioning and contract management staff
Develop templates aligned to the new regime
Prestige Commercial Consulting works with procurement and commercial professionals on practical procurement improvement, capability development and route-to-market support. The key point for councils is broader than any single provider: the capability gap must now be addressed deliberately.
The next stage is confidence
The Procurement Act 2023 has now moved beyond implementation. The next stage is confidence.
Councils that continue to treat the Act as new will remain cautious. Councils that treat it as business as usual, but without changing behaviour, will miss the opportunity. Councils that invest in judgement, governance, market understanding and practical capability will be better placed to secure value, improve outcomes and manage risk.
The new regime does not remove the need for control. It requires better control.
It does not ask councils to be reckless. It asks them to be proportionate.
It does not make procurement simpler in every case. It allows procurement to be better designed.
The authorities that benefit most will be those that stop asking whether they are allowed to use the new routes and start asking how to use them properly, confidently and with a clear audit trail.
That is now the real test for local government procurement.