One of the most important developments under the Procurement Act 2023 is the increased visibility of serious supplier performance failures. Section 71 provides for the publication of Contract Performance Notices in specified circumstances, including certain contractual breaches and failures to improve unsatisfactory performance.

These notices are not merely administrative documents. They may provide evidence relevant to decisions about a supplier’s suitability for future public contracts, including consideration of discretionary exclusion grounds.

Consider the commercial consequences

A public authority awards a five-year, £8 million IT support contract.

Nine months into delivery, the supplier repeatedly fails to meet response times for critical incidents. Despite being given a proper opportunity to improve, performance remains unacceptable.

Under the relevant statutory provisions, the authority may be required to publish information about that failure. The consequences could extend beyond the original contract. Other contracting authorities may be able to consider the published information when assessing the supplier for future opportunities, subject to the applicable exclusion rules.

For suppliers, this raises the reputation and commercial importance of performance management, as published poor performance could affect their ability to win further contracts in the public sector.

For contracting authorities, it makes accurate records and properly administered improvement procedures essential.

 I believe there are five questions for contract managers to consider

1. Are performance failures being recorded objectively?

2. Can we demonstrate the supplier’s failure against contractual obligations?

3. Have we provided a proper opportunity to improve?

4. Are escalation procedures being followed?

5. Do we understand when a Contract Performance Notice is required?

We are running our very popular “Designing Contract Performance Management Regimes under the Requirements of the Procurement Act” course. 15-16 December 2026. This provides practical training to enable contract managers to recognise performance failures, administer contractual remedies, manage disputes and establish defensible performance records. This course is also available as an in-house tailored event.