One of the most commercially significant changes introduced by the Procurement Act 2023 concerns the relationship between contract performance and future tendering opportunities. Under Schedule 7, certain serious contractual breaches and failures to improve performance can provide grounds for discretionary exclusion from future public procurement competitions.
The government has explained that a published Contract Performance Notice can provide evidence supporting such a decision. The implications are particularly important for contractors operating across multiple local authorities, NHS organisations, government departments and other public bodies.
Case Study:
A construction contractor is delivering a £15 million public sector refurbishment programme. The contractor is guilty of persistent delays, defective work and repeated failures to implement agreed recovery measures. The contracting authority ultimately reaches a settlement agreement following contractual breaches and publishes the required notice. Another authority subsequently considers the contractor for a new project. The earlier notice may now become relevant to the second authority’s assessment of whether the supplier is excusable.
I believe that contractors should ensure that their contract management arrangements provide reliable evidence of performance and timely responses to failures. They should maintain clear records of contractual notices, improvement plans, mitigation measures, management decisions and successful remedial action. Where performance failures occur, contractors should act promptly to demonstrate that the underlying causes have been resolved.
Our course “Contractors Guide: Contract Performance Management Regime Requirements of the Procurement Act” places particular emphasis on understanding the new requirements imposed by the Act and how to ensure that contractors are able to respond to these challenges.
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