In Competition… Competition & Public Procurement Law: February 2026 Update
March 2026Welcome to the seventh edition of In Competition.
Whilst February is the shortest month of the year, it offered no shortage of developments in the fields of competition and procurement. In the month the Procurement Act 2023 turned one year old, the first claims were brought under the Act and the first contract performance notices published. Amendment regulations were released allowing for UK only tenders for below threshold contracts. Meanwhile in antitrust, the CMA signed an important cooperation agreement with the EU Commission, released an influential position paper on competition in labour markets and conducting market investigations, widened its probe on construction bid rigging and issued its first fine under the Digital Markets Competition and Consumers Act 2024 (DMCCA).
This update summarises key developments in UK and EU competition law and public procurement mostly from February 2025, including significant enforcement actions, regulatory changes, and sector-specific insights.
CMA and Commission highlights
Reforming non-compete clauses in employment contracts
CMA has published a response to the Department of Business and Trade’s working paper on options for reform of non-compete clauses in employment contracts (e.g. clauses that prevent employees working for a competitor or setting up in competition with a former employer). The CMA says that non-compete clauses significantly restrict employee mobility, which locks up potential efficiencies and economic growth. Of the options put forward for reform, the CMA favours banning non-competes for employees below a specified income threshold, and introducing time restrictions on non-competes for workers paid more than that threshold. More information can be found here.
Why does this matter? Employers need to monitor these developments, which could have ramifications for the terms they impose on workers. Ultimately, employers may need to protect their interests in alternative ways, such as through NDAs or garden leave provisions.
CMA consolidates guidance on Market Reviews
The CMA has published a unified Guidance on CMA market reviews (CMA3) that embeds its 4Ps framework, replaces fragmented procedure documents, and introduces Roadmaps, state‑of‑play meetings and a default use of sunset clauses for market remedies. It also clarifies the ability to accept partial or full undertakings in lieu without a full market investigation. This is a substantive recalibration of process and engagement. More information can be found here.
Why does this matter? Clients in construction, infrastructure, engineering and utilities are frequent subjects of markets work. Expect tighter timetables, fewer working papers, earlier signalling on remedies, and closer engagement with expert panels. Clients should prepare internal playbooks now.
CMA expands roofing and construction services bid‑rigging investigation
The CMA has widened its Chapter I probe beyond school projects to other public and private sector bodies. This shifts the matter from a narrow funding stream to a broader sectoral risk. The CMA is investigating suspected anti-competitive conduct in the form of bid-rigging in connection with the supply of roofing and other construction services to schools, including those eligible to apply for funding from the Department for Education’s Condition Improvement Fund (CIF), and to other public and private sector bodies. More information can be found here.
Why does this matter? Review tender strategies, subcontractor coordination, and information‑sharing protocols across your frameworks and DPSs. Insurers with construction PI portfolios should anticipate increased notifications and reserves.
CMA warns housebuilders
Juliette Enser, executive director of the Competition and Markets Authority has warned housebuilders to be careful about providing information to rivals, following last year’s probe into alleged price information sharing by a group of firms. Writing for Housing Today, Juliette Enser said “If you speak to competitors – especially about the number of homes built and pricing – take a moment to stop and think.” More information can be found here.
Why does this matter? The quote signals continued interest in the housing sector following last year’s investigation. Many have argued that the housing sector is insufficiently competitive, meaning that further interest could follow if the CMA suspects unlawful activity.
CMA fines car park operator for lack of cooperation
For the first time, the CMA exercised fining powers under the Digital Markets £473,000 for failing to respond to a request for information in connection with a consumer law investigation. The CMA had contacted the defendant, Euro Car Parks, seven times: by email, registered post and mail. The CMA rejected its claims that it ignored the communications because it doubted their genuineness, believing they were part of a scam. Euro Car Parks’ application for an injunction to prevent it being named was unsuccessful and an appeal against the fine is pending. before the High Court. More information can be found here.
Why does it matter? It is important to be vigilant when receiving correspondence claiming to be from an official authority. The CMA case follows a number of cases last year where OFSI, the UK sanctions regulator, similarly fined businesses who failed to provide information requested under statutory powers. Spam filters on email accounts must be adjusted to allow through correspondence from government bodies and regulators.
EU–UK Competition Co‑operation Agreement signed (25 Feb)
The Commission and the UK confirmed signature of a new co‑operation instrument that brings together the Commission and all 27 EU National Competition Authorities on one side and the CMA on the other. Co‑ordination will increase on mergers and antitrust where cross‑border interests arise. More information can be found here.
Why does this matter? Cross‑channel projects and supply chains will see more aligned investigations and remedies, notably in materials, EPC, energy and transport sectors. Businesses should be readier for the possibility of coordinated dawn raids (or other investigative action) across the UK and EU27. Information shared with one regulator could ultimately be passed to the other one, heightening the risk of regulatory action.
Air Cargo: ECJ upholds broad effects jurisdiction (26 Feb)
The ECJ largely dismissed appeals against the Commission’s re‑adopted air cargo cartel decision, reaffirming the qualified effects jurisdiction for inbound services and rejecting a range of liability and limitation arguments. Twelve carriers, including British Airways, sought to overturn the penalty decision on the basis that the relevant conduct had taken place outside the territory of the EU. More information can be found here.
Why does this matter? UK businesses operating globally should assume EU exposure where conduct has immediate, substantial and foreseeable effects in the Single Market, even if arrangements are executed offshore. It would be a mistake to think that EU law is now irrelevant to UK firms because of Brexit.
Financial services and platforms: DMA and mobile ecosystems
The CMA invited views on commitments from Apple and Google regarding app store processes (see more here) and separately, the EU Commission decided Apple Ads and Apple Maps should not be DMA‑designated services for now (see more here).
Why does this matter? UK app‑based tools used in engineering and field services may benefit from fairer app review, ranking and interoperability pathways. The scope of the Digital Markets Act remains fluid. Clients should monitor for follow‑on compliance asks in 2026.
Public procurement highlights
First claims filed under the Procurement Act 2023
As the Procurement Act enjoyed its first birthday on 24 February, the first claim under the legislation was filed with the High Court. It is understood that the claimant is a UK subsidiary of Bouygues, which alleges that the Department for Education ran a flawed procurement process for an estimated £15.4 billion construction project and wrongly excluded the engineering company from the scheme. More information can be found here.
Why does this matter? The Act is now becoming the governing statute over the bulk of procurement challenges. It is critical that tenderers understand their rights and responsibilities under the Act in order to protect their interests with regard to public sector opportunities. The first claims are an indicator that your competitors are taking advantage of rights and remedies available under the Act.
First contract performance notice published under Procurement Act 2023
S 52 of the Procurement Act 2023 introduced a requirement for contracting authorities to monitor the performance of suppliers against key performance indicators (KPIs) and publish periodical updates on how they fared against those indicators on the Find a Tender Service. The first such notice was published by the University of Sheffield in respect of 4405/AMRC/CK/25 AMRC Uniform Contract, rating its supplier as “good” across the three KPIs. More information can be found here.
Why does this matter? Increased performance risk and publicity are two of the consequences of the legal reforms. Bidders should take care when negotiating – to the extent that they can – the content of KPIs and associated metrics. During execution phase, performance must be monitored closely and complaints made promptly if they disagree with a KPI assessment made by a contracting authority.
Payment transparency under the Procurement Act 2023: Guidance issued
The Government Commercial Function has issued guidance for section 70: authorities must publish quarterly payment information over £30,000 on the Central Digital Platform. Go‑live is expected 1 April 2026 via the Procurement (Amendment) Regulations 2026. See more here.
Why does this matter? Main contractors and Tier‑2 suppliers in construction and engineering should expect visibility of cashflows to increase. This will sharpen prompt payment scrutiny, affect supply chain conversations and invite more performance challenges if payment cycles slip. Undertakings should build internal reporting to reconcile against CDP publications.
SME access: local or UK supplier reservations now lawful for below‑threshold
The Local Government (Exclusion of Non‑commercial Considerations) (England) Order 2026 permits local authorities to reserve below‑threshold procurements to local or to UK‑based suppliers. See more here.
Why does this matter? Small works, maintenance and services lots can be reserved. UK and local SMEs in civils, highways, building safety and FM should watch notices carefully and calibrate pipeline plans.
Draft Procurement (Amendment) Regulations 2026
Key changes include mandatory CDP registration for suppliers awarded below‑threshold contracts, and explicit reservation signals in notices. Some publishing duties move from Contracts Finder to the CDP. See more here.
Why does this matter? Expect tighter data hygiene across supply chains and easier tracking of SME and VCSE participation. Bidders should ensure their identifiers and CDP profiles are complete to avoid award‑stage friction.
Foreign Subsidies Regulation and EU tenders
The FSR allows the Commission to prohibit the grant of government subsidies to entities who trade in the EU but are based outside its territory. The Commission opened an in‑depth FSR investigation into Goldwind in the EU wind sector. More information can be found here.
Why does this matter? UK developers, EPCs and ports working on EU renewables should expect extended FSR due‑diligence in wind procurements and possible timing impacts if commitments or redressive measures are pursued.
UK Subsidy control
GLA £11.7bn Social and Affordable Homes Programme (SAU report)
The SAU issued advice on the GLA’s 2026–2036 programme. It credits the assessment but seeks stronger demonstration of proportionality and market failure analysis. See more here.
Why does this matter? Expect a significant housing pipeline for contractors and modular providers. Expect authorities to adopt SAU suggestions on proportionality evidence and design features that minimise distortions.
Homes England – Luton Power Court £29.5m subsidy (SAU report)
The SAU welcomed assessment quality but asked for clearer justification of subsidy sizing and behavioural additionality. See more here.
Why does this matter? Brownfield remediation and enabling works remain financeable under the Subsidy Control Act. Bidders should expect closer scrutiny of cost baselines and counterfactuals.
Cross‑cutting digital and data
Data (Use and Access) Act 2025 – staged commencement (5 Feb and 19 Jun 2026)
Key changes are live or imminent: Recognised legitimate interest, revised subject access timelines, new ADM framework, transfer test, tougher PECR penalties, and extended soft‑opt‑in for charities. More information can be found here.
Why does this matter? All businesses need to refresh privacy notices, ROPAs, DPIAs and cookie governance. Procurement teams should expect bidder data compliance to be probed more deeply in tenders.
If you have any questions about the information discussed in this update, please contact Paul Henty, Deen Taj, and Charlie Bayliss.
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