Six months in, six key differences: How the Procurement Act measures up to the Green Paper

Back in December 2020, the UK Government published its Green Paper: Transforming Public Procurement, promising a simpler, more transparent and more flexible regime to replace the EU-derived Public Contract Regulations 2015 (PCR). Fast forward to 24 February 2025, and the Procurement Act 2023 (the Act) came into force.

With six months of the Act now behind us, it’s a good moment to reflect on how far it delivers on the ambitions of the Green Paper, and where the vision has shifted. In this article, we have identified six key differences between the Green Paper’s vision and the Act’s reality.

1. Cap of damages – dropped

The Green Paper proposed capping damages in procurement claims to discourage speculative litigation. Ultimately, this idea was rejected. Courts retain discretion, recognising that inflated awards are rare and that existing principles already set a high bar for recovery.

For SMEs in particular, this is a welcome outcome as legitimate challenges remain worth pursuing, and the risk of being under compensated has been avoided.

2. Lifting the automatic suspension – no new test

The Green Paper proposed moving away from the American Cyanamid test, which some considered ill-suited to public procurement disputes. While the Act sets out a ‘new’ statutory test for automatic suspensions, in practice there are only slight tweaks in wording.

Automatic suspensions will likely continue to frequently be lifted in favour of public service continuity. While some hoped for a bespoke procurement test, judicial flexibility and certainty ultimately prevailed.

3. Light touch regime – retained

The Green Paper suggested scrapping the light touch regime, expecting the new ‘competitive flexible procedure’ to cover the commissioning of health, social care and other services.

Ultimately, the Act retained a simplified light touch regime with higher thresholds. This was a pragmatic adjustment, recognising the distinct challenges of person-centred services where flexibility and proportionality matter most.

4. Procurement tribunal – abandoned

One of the boldest proposals was a specialist tribunal for procurement disputes, making the prospect of challenges faster, cheaper and more accessible for SMEs than the courts.

The Act abandoned this idea, keeping the familiar court-based system. While this avoids the cost and complexity of establishing a new forum, it leaves the question open of whether smaller suppliers truly have better access to justice under the new regime.

5. Limited tendering – disappeared

The Green Paper envisaged three procedures: open, competitive flexible and limited tendering (for exceptional cases such as urgency).

The Act takes a different approach. Limited tendering does not feature as a defined procedure. Instead, contracting authorities may use direct award routes under tightly drawn statutory grounds. This gives the Act a sense of familiarity compared to the Green Paper by continuing with existing terminology.

6. Disclosure of tenders – not implemented

Perhaps the most radical transparency proposal in the Green Paper was for contracting authorities to publish evaluation documents and even bidders’ tenders (with redactions).

The Act significantly expands notice and reporting requirements but stops short of mandating disclosure of full tenders. This avoids heavy administrative burdens and confidentiality risks, while still moving the dial on transparency.

Final thoughts

The Green Paper promised revolution. The Act delivers evolution.

Six months in, the regime feels more familiar than feared. Most practitioners have been able to continue ‘business as usual’, albeit with some important enhancements around transparency, notices and flexibility.

Familiarity is not necessarily a bad thing. Radical reform could have created real disruption, whereas the Act has achieved change in a way that feels steady and manageable. With further regulations and consultations (including the Growing British industry, jobs and skills consultation) already underway, this is clearly intended as a living system, one that can adapt as procurement practice continues to evolve.

The next six months will show whether that adaptability will strengthen, or whether the more ambitious ideas left behind in the Green Paper will eventually need to be revisited.

Nicola Cullen is an Associate at Capital Law.