Guidance

Module 3: Procurement procedures

Published 22 April 2024

The learning manual and all of the material within it has been produced for the purpose of learning and development only, and does not constitute and should not be relied upon as legal or other professional advice. We have aimed to ensure that the information is correct as at 26th July 2024. The content has not been updated following any relevant changes. In particular, the material used in the e-Learning and learning manual has been based on a draft version of the Procurement Regulations 2024 and so users should review the Procurement Regulations 2024 laid before Parliament and the guidance issued by Cabinet Office in due course.

1. Introduction

This document intends to provide a summary of the pre-procurement tools, procurement procedures and various means of contracting available under the Procurement Act 2023. It will identify the key changes against the previous regulations (primarily by reference to the Public Contracts Regulations 2015 (PCR 2015)) and set out what a contracting authority must do to be compliant with these changes. It will also highlight the opportunities in the new Act and how they can be used to get the most benefit.

2. Overview

One of the key benefits of the new regime is that the competitive procedures available under the PCR 2015 have been simplified to improve efficiency and flexibility. Whilst the single stage open procedure has been retained, the multi-stage procedures (restricted, competitive procedure with negotiation, competitive dialogue, innovation partnerships and design contests) have been reduced to a single competitive tendering procedure known as the competitive flexible procedure. This procedure provides the ability to design and undertake a bespoke procedure most appropriate for the requirement and the market whilst complying with the rules of the Procurement Act 2023. including having regard to the procurement objectives.

Where a competitive tendering procedure is not appropriate or cannot be used, direct award now replaces the negotiated procedure without prior publication. The grounds on which a direct award can be made are broadly similar to those of PCR 2015, UCR 2016, and DSPCR 2011, but include a new additional ground, section 42 direct award to protect life, etc. This allows a Minister of the Crown to use a regulation making power to allow the direct award of specified contracts where considered necessary to protect human, animal or plant life and health or public order and safety.

There are also two new grounds which are specific to defence and security contracts, further detail is provided in the Defence and Security Summary Document.

There is also a new ground to direct award for user choice for light touch contracts. Light touch contracts cover specific services which are specified under the light touch CPV codes that can be found in the Procurement Regulations 2024, further detail is provided in the Light Touch Summary Document.

3. Pre-Procurement Preparation

The Act has a number of provisions to support pre-procurement preparation, helping contracting authorities to fully understand and engage with the market, develop their strategy and plan their procurement process effectively.

The Central Digital Platform

Change: As explained in the transparency summary document the central digital platform has been introduced which will provide a single digital platform to standardise and improve the accessibility of commercial data across the public sector.

Benefits: As part of pre-procurement preparation, contracting authorities will be able to take advantage of this platform to:

• find information on the market and supply base that is already contracting with the public sector.

• review other contracting authorities’ data.

• understand suppliers performance.

• use this information to assist in the development of the procurement strategy, and help further understand the market.

In time, contracting authorities will also be able to find out whether there are existing routes to market such as frameworks or dynamic markets and which suppliers have been awarded a place on these agreements through the Register of Commercial Tools. By using this, existing arrangements may be identified, removing the need for a full procurement process.

Planned procurement notice

When a contracting authority intends to undertake a procurement they should consider notifying the market of their plans in advance to allow them time to prepare to respond to the potential opportunity, creating a more competitive environment and driving best value. Publishing a planned procurement notice is not a commitment to undertake that procurement.

Change: A planned procurement notice has been introduced (section 15) which is an optional notice.

This notice is used to signal a contracting authority’s intent to publish a tender notice in the future in the same way that the prior information notice (PIN) does in the PCR 2015 regulations.

Benefits:

• Gives the market early visibility of the opportunity and alerts them to the fact that a tender notice will be published.

• Allows interested suppliers to prepare to respond to the opportunity.

• Can be used to reduce tendering timescales (where it is a qualifying notice) .

When would a planned procurement notice be used?

• To alert the market as early as possible of an upcoming procurement to ensure that there is a good level of competition and the best outcome is achieved

• When a contracting authority has a requirement that is of significant value, complex or high risk

• When you envisage disaggregating or using lots in larger value or multiple category contracts.

Reducing timescales

If this notice is published between 12 months and 40 days before the tender notice and the subject matter of the procurement remains the same, then it would become a qualifying planned procurement notice (section 15(3). A qualifying planned procurement notice can be used to reduce tendering timescales, if required, to a minimum of 10 days (timescales will be covered later in this document).

However, if this notice is published outside these timescales or the details of the procurement change significantly by the time the tender notice is issued, then the planned procurement notice is no longer a qualifying notice and it cannot be used to reduce timescales.

What information needs to be in the notice?

Regulation 16 of the Procurement Regulations 2024 sets out the requirements for a planned procurement notice.

It should set out, amongst other things:

• as much information as possible about the nature and scope of the requirement

• an estimate of when the tender notice will be published

• an estimated value (if available)

Preliminary market engagement

Section 16 of the new regime broadly replicates regulation 40 of the PCR 2015 with regards to preliminary market engagement, or pre-market engagement as it is often referred to.

Change: The main change is that there is a new preliminary market engagement notice^{[footnote 1]} set out in section 17 of the Procurement Act 2023 which is now required to be published in line with the transparency requirements to inform the market when a contracting authority intends to conduct or has already conducted any preliminary market engagement activities. Preliminary market engagement activities are set out in section 16(1).

Benefits:

• It gives the market the chance to fully understand or help to develop the requirements and the procurement procedure a contracting authority intends to undertake

• It is more likely to create a more competitive tendering environment and ensure a good level of response to the tender opportunity.

• It helps the contracting authority to understand the capacity and capability of the market and the art of the possible

When is preliminary market engagement recommended?

• where requirements are specialist, complex or niche,

• where the market is unknown or limited, or

• where a contracting authority has an idea of their requirements but wants to understand further what is available.

• where a contracting authority wants to test their potential procedure to understand whether it is suitable or not.

• to assist in the design and development of conditions of participation, award criteria or contractual terms.

• to engage with suppliers new to tendering for public contracts and encourage them to participate.

Whilst preliminary market engagement is not mandatory, contracting authorities are encouraged to engage with the market wherever practical to help inform the procurement process.

Where preliminary market engagement is undertaken, then the preliminary market engagement notice must be published before the tender notice or the contracting authority must provide the reasons for not publishing a preliminary market engagement notice in the tender notice.

If the contracting authority has not conducted any preliminary market engagement, there is no need to justify such a decision in the tender notice.

It is worth noting that there are no minimum timescales required between publishing a preliminary market engagement notice and the tender notice. Publishing a preliminary market engagement notice is not a commitment to undertake a procurement.

Contracting authorities will need to ensure that all departments and stakeholders that engage with the procurement process are aware of the requirement to publish this notice and encourage them to coordinate any engagement with the market through their procurement or commercial teams to ensure compliance.

Regulation 17 of the Procurement Regulations 2024 sets out the information that must be contained in a preliminary market engagement notice, which includes, amongst other things:

• The initial scope of the requirement or outcome that needs to be achieved

• The nature of the engagement

• The date the preliminary market engagement will, or intends to, close

Examples of preliminary market engagement may include:

• Questionnaires - questionnaires can be used to obtain basic information from the market about the types of solutions available and whether there would be interest in bidding for the opportunity.

• Supplier Day - supplier days offer the opportunity to present the requirements and the procurement procedure that is being considered to the market. It allows for real time feedback on current thinking, as well as discussions to explore the feasibility of alternative or innovative solutions.

• Site Visits - undertaking supplier site visits offer the opportunity to see potential solutions in practice. Alternatively, suppliers may visit the contracting authority’s site so they can understand the requirements better through seeing what is currently in operation

• Product Demonstrations - These allow the market to demonstrate a potential specific solution that may meet the requirements and may help to develop specifications and assessment criteria

• Workshops - may be best used as a more collaborative approach, where the requirement or solution to the problem is not yet known, working with the market to identify potential solutions to help to define the requirements and the most appropriate procurement procedure

• Presentations - presentations allow suppliers to present their potential solutions to the requirements and may explore alternative solutions to be considered

In appropriate circumstances, contracting authorities may also consider limited or informal market engagement. This could be done in a number of ways:

• Consultation with existing suppliers - engaging with existing suppliers will enable greater understanding of how the product offering and market has developed and what solutions are now available

• Selective engagement - selecting a number of known suppliers to have initial discussions with or by approaching a representative sample of the market rather than invite suppliers to engage.

Where this limited or informal type of engagement has been undertaken, there is still the requirement to publish the preliminary market engagement notice to notify the market of the activities taken place to ensure transparency or provide reasons in the tender notice for not doing so.

As a reminder, when conducting preliminary market engagement, whether the whole market, existing suppliers or selectively, contracting authorities must ensure that:

• Suppliers participating in the preliminary market engagement are not put an an unfair advantage; and

• The competition for the award of the contract is not otherwise distorted.

• They have regard to the importance of the objective of acting and being seen to act with integrity eg through ensuring they meet the transparency requirements and treating suppliers the same; and

• The appropriate steps are taken in relation to conflicts of interests.

Through preliminary market engagement, contracting authorities must consider their duty to have regard to barriers to participation faced by SMEs and aim to identify and encourage such suppliers to participate, which can help to improve service delivery. Assessments of the market and preliminary market engagement should consider opportunities for wider social, economic and environmental ‘social value’ benefits that can be achieved through the performance of the contract whilst ensuring that this is not done in a way which discriminates against a treaty state supplier.

There are no set timescales for undertaking preliminary market engagement but contracting authorities should ensure that all interested suppliers have sufficient time to prepare and participate and that it is proportionate to the type of engagement being undertaken.

For example, where suppliers are required to read documentation, submit conflict of interest declarations and prepare feedback, then this would require more time for response than simply asking suppliers to confirm their attendance at a meeting to discuss proposals where no preparation is required.

If multiple stages of preliminary market engagement are required, for example initial questionnaires and then identifying suppliers to engage further with, then this process should be described in the preliminary market engagement notice. There is no requirement to publish multiple notices for this type of preliminary market engagement unless it leads to a significant change of scope that may mean additional engagement is needed with a different market.

It’s important that records of any engagement undertaken and any relevant information or findings are kept which can be shared as part of the tender process where relevant and obtained for audit trail purposes in accordance with section 98 (Record-keeping).

The information gathered from engaging with the market can be used in the planning of the procurement procedure, provided it doesn’t put a supplier at an unfair advantage, that competition is not distorted or conflict with the procurement objectives.

As best practice, the outcome of the engagement may be included in the tender notice or tender documentation, to ensure that all suppliers have access to the same information and that the procurement objectives of sharing of information and treating suppliers the same are met.

Collaborative and joint preliminary market engagement

It is possible to undertake a joint preliminary market engagement exercise with another contracting authority if the intention is to undertake a joint procurement or a contracting authority wants to understand whether a joint procurement would be more beneficial or attractive to the market.

In this instance there would only need to be one preliminary market engagement notice published in the name of the lead contracting authority but any collaborating contracting authorities would need to be clearly named.

If following this engagement, it results in separate tenders then the named authorities would not need to publish another preliminary market engagement notice, and the rationale for progressing separate procurements could be outlined in the tender notice as the reason for the collaborating authority not having published a preliminary market engagement notice and explained in the associated tender documents.

Pre Procurement Transparency

Depending on the nature of the requirement and the market, a contracting authority may wish to use both the planned procurement notice and the preliminary market engagement notice as part of the procurement process either of which could be published first, there is also the option to use one or the other, or none at all.

Example:

A contracting authority is aware of an upcoming procurement from their pipeline that they may need to reduce timescales for and would like to undertake some preliminary market engagement prior to issuing the tender notice. However, following the preliminary market engagement some of the initial detail in the qualifying planned procurement notice has changed significantly, and therefore it needs republishing in order to qualify for reduced tender timescales.

1. Qualifying planned procurement notice becomes non qualifying.

2. Preliminary market engagement notice.

3. Qualifying planned procurement notice.

4. Tender notice.

A contracting authority would like to, or has already undertaken preliminary market engagement, and there is sufficient interest to not require any additional notice to generate competition and there is no requirement to reduce timescales at the tender stage.

1. Preliminary market engagement notice.

2. Tender notice.

Further examples can be found in the pre-procurement transparency learning aid

Duty to consider lots

The duty to consider lots is a new duty which means lots should be considered prior to undertaking a procurement and publishing a tender notice (section 18) rather than just simply giving reasons for not splitting into lots as required under PCR 2015. Considering lots may also contribute to the objective of having regard to and removing barriers for SMEs.

Preliminary market engagement can help to identify whether the goods, service or works to be supplied could reasonably be provided under more than one contract and whether the contract could be awarded in lots.

Example:

Generic office cleaning service with a large number of competitors could be procured as a single contract for all sites to a large nationwide supplier, likely benefiting from economies of scale in securing value for money. However, you should consider other factors like supporting SMEs or ensuring resilience across the supply chain to avoid over-dependency on one supplier. Therefore, choosing to divide into lots based on geographical area may be an appropriate solution. This may allow smaller suppliers to compete for one location against a bigger supplier competing for multiple locations.

Where a contracting authority determines that lots could be reasonable and appropriate, they must either use lots or provide the reasons for not doing so in the tender notice (section 18(2)).

If a contracting authority choose to include lots in their procurement, they must:

• Clearly state that the contract will be split into lots

• Provide the details of each lot.

• Clearly define the award criteria for each lot based on the principles of most.advantageous tender (MAT) (assessment and award summary document).

Contracting authorities can:

• Limit the number of lots a supplier can tender for.

• Limit the number of lots a supplier can be awarded.

• Combine multiple lots into a single contract if a supplier wins multiple lots (provided that this is stated this in the tender notice and / or associated tender documents).

Identifying Risk

Taking time at the planning stage of the procurement lifecycle to identify and measure risks is an essential element of pre-procurement activity.

Prior to commencing a procurement process, it is essential that different types of risks are identified. The impact of such risks will also need to be considered in terms of how they could affect the future operation of the contract so that such risks can be managed through the process, for example by designing an appropriate specification or use of relevant key performance indicators (KPIs) (contract governance summary document).

Risks can be categorised in 3 ways:

• Known Unknowns - Risks that an organisation is aware of, but is unaware of the size and effect of their impact.

• Unknown Unknowns - Risks that an organisation is not aware of, and therefore is also unaware of the size and effect of their impact.

• Known Knowns - Risks that an organisation is aware of, and is also aware of the size and effect of their impact.

For the purposes of taking advantage of the Act later in the procurement lifecycle, contracting authorities should give further consideration to known unknown risks. These are risks that a contracting authority can identify upfront, prior to commencing a procurement process, but where the likelihood of that risk materialising, or the impact if it did materialise, are not quantifiable.

A risk may be classified as a “known unknown” because:

• There is insufficient information to allow consequences to be known and therefore clearly defined in advance.

• The risk is lower priority or not seen as critical, due to unknown probability and impact.

• The cost of defining the risks up-front and building this into the contract may be disproportionate against the actual cost paid should the risk materialise.

Paragraph 6 of Schedule 8 of the Procurement Act 2023 requires that, if a contracting authority wants to be able to modify a contract on the materialisation of these known unknown risks, within the tender documentation and relevant transparency notices, the details of these risks should be set out including:

• How the risk, or risks, may impact on the satisfactory performance of the contract

• Why it is not possible to address the potential impact of such risks upfront in the contract; and

• The possibility that the contract may require modification if one of the identified risks materialise

The benefit of identifying the risks and providing this detail upfront, is that it may allow the modification of the contract at a later stage should the risk materialise. The contract governance summary document provides further detail about permitted modifications.

Example:

A Hospital intends to refurbish part of a wing that was originally constructed in the 1960s. Prior to commencing the tender process for construction works, as part of the specification design process, a site survey was commissioned to determine the condition of the existing building and the presence of any contaminants. Whilst the surveys do not identify any problems, the risk remains that some issues with the building fabric may still be uncovered as some areas of the hospital were unable to have a full survey due to patient occupancy prior to works commencing.

Known elements of a risk are those that can be reasonably identified in advance of the risk materialising. In this scenario, the contracting authority should reasonably be able to identify risks that the building fabric condition may be poor, that specialist surveys may be needed, and the potential for additional costs and delay if investigative and remedial works are needed.

The unknown elements of a risk are those that cannot be reasonably identified in advance of the risk materialising due to insufficient information on the probability and impact. In this scenario, the contracting authority is unlikely to be able to forecast, at this stage, the extent of any building fabric issues, the scope or cost of remedial works, or the time delay to the programme.

By identifying these risks, the contracting authority is able to provide the detail up front in their tender documentation, potentially allowing them the option to modify the contract in future if these risks actually materialise.

Requirements

The Procurement Act 2023 makes reference to the contracting authority’s requirements which are defined at section 19(a) as the requirements as set out in the tender notice and associated tender documents. Section 21(6) provides that the requirements must

• Be sufficiently clear and specific

• Not break the rules on technical specifications (section 56)

Examples of such requirements include:

• Any minimum requirements for the delivery of the contract (which are separate to any conditions of participation set under section 22 of the Act - see supplier selection summary document).

• Specification.

• Terms and conditions.

• Any procedural requirements such as deadlines, word limits and any other information required from the supplier.

Technical specifications

Change: Section 56 of the Procurement Act 2023 requires contracting authorities to base technical specifications on performance or functional requirements and not particular design, licensing model or descriptive characteristics, unless it is not appropriate to do so. (It differs from the PCR 2015 in that it does not contain examples of the types of characteristics, such as environmental performance or quality levels, that contracting authorities may want to include in their technical specifications, although these are all still permitted.

Contracting authorities should be mindful to ensure that they are not unnecessarily limiting competition through the use of their technical specifications and be aware of their non-discrimination duties.

Benefit: This is designed to simplify the provisions on technical specifications.

The Act retains the ability to require UK standards, providing the UK standard specified adopts an internationally recognised equivalent or there is no internationally recognised equivalent.

Sub-contracting specifications

Change: Where an element or part of a contract awarded following a competitive tendering procedure could be awarded to a particular supplier under a direct award ground (covered later in this document), contracting authorities have the ability to specify that they require the supplier to sub-contract those elements to that particular supplier (section 25).

Benefit: This means that there is greater flexibility to ensure that factors such as interchangeability or interoperability with existing equipment or services can be considered and allowed for in a competitive procurement. It also means that there is less of an administrative burden from managing two contracts and reduces operational risk in terms of there being a single supplier responsible for the delivery of the requirement overall.

Any requirement for a supplier to sub-contract the supply of certain goods, services or works to a particular supplier under section 25 should be clearly set out in the tender notice and any associated tender documents as part of contract subject-matter information and in order to provide information sufficient to allow suppliers to prepare such a tender.

This approach could be discussed as part of any preliminary market engagement to ensure the feasibility and highlight any issues or risks from the suppliers’ perspectives.

Mixed Procurements

Before commencing a procurement, a contracting authority needs to identify which rules are applicable. The Procurement Act has simplified the rules around mixed procurements both for above and below threshold / mixed goods, works and services contracts, and where one or more elements of the requirement could be supplied under a special regime contract.

Change: The approach to mixed procurement as codified in section 5 of the Procurement Act 2023 has not substantially changed from that applied in the PCRs. However, as the multiple regulations (PCR 2015, UCR 2015, CCR 2016 and DSPCR 2011) have been consolidated under the Act, there is no longer a need to undertake multiple tests to determine which procedure should apply to a mixed procurement.

Benefits:

• Flexibility to procure contracts separately or have mixed procurements

• Single test of reasonable separability - providing the ability to assess each procurement on a case by case basis

The Act allows for goods, works or services elements to be procured separately. However, the Act also permits contracting authorities to combine one or more of these elements in one contract where those elements are properly inseparable; i.e. cannot reasonably be supplied under separate contracts.

If, however, splitting out a contract into separable elements is reasonably possible, and a contracting authority chooses not to separate, where the resulting mixed contract contains both above and below threshold elements, it must be treated as an above-threshold contract and therefore subject to the relevant rules set out in Parts 3 & 4 of the Procurement Act 2023. When determining whether or not separation is reasonably possible, the contracting authority can take into account factors such as any practical and financial consequences of splitting out the requirement.

When determining the contract type, there is no need to differentiate between goods and services as the threshold is the same. However, if the main purpose of the contract is carrying out, or facilitating the carrying out of works (Paragraph 4 of Schedule 1) but there are additional goods and/or services elements then the contract is a works contract, and subject to the applicable works threshold. However, if the additional goods and/or services elements are above the goods/services thresholds and could reasonably be supplied under a separate contract then the entire contract must be treated as above threshold even if the whole contract value was not above the works threshold. Conversely if the main purpose of the contract is not works, but is for the supply of goods and/or services, with additional work’s elements that cannot reasonably be supplied under a separate contract, then the contract would be subject to the goods/services thresholds.

Example:

A contract is worth £4.3 million, comprising mixed elements of works (£4 million, therefore below the works threshold) and services (£300,000, therefore above the services thresholds). The main purpose of the contract is works. If the additional services element of £300,000 is inseparable from the works elements, i.e. can not reasonably be supplied under a separate contract, then the contract is a below-threshold works contract worth £4.3 million.

If the additional £300,000 services element could reasonably be supplied under a separate contract, then because the separate contract for the services element only would be above the relevant services threshold, the entire contract must be treated as above threshold.

If the main purpose of the contract was not works, then the contract is not a works contract and cannot take advantage of the higher works threshold. The entire £4.3 million contract is therefore assessed against the lower services threshold and would clearly be above threshold.

What the rules do is ensure that if that services contract could reasonably be procured separately, then it should either be procured separately or the whole mixed contract will be deemed above threshold and must be procured in accordance with the Procurement Act 2023.

Special regime contracts

Similar principles apply under section 10 where the contract is a special regime contract, and therefore could benefit from higher thresholds and/or various exemptions from the rules in the Act, but includes additional goods, services or works elements which, if procured as a separate contract would not be the same type of special regime contract or a special regime contract at all.

Special regime contract and non special regime contract elements

If a special-regime contract includes additional non-special-regime elements, and separation of these elements is possible but a contracting authority chooses to award one contract, then that mixed contract will not qualify as a special regime contract. This means that none of the special regime contract thresholds or exemptions can be used.

Example:

A contracting authority requires a training provider for a corporate refresh of all mandatory training (i.e. Health and Safety, Data Protection etc), this training can be delivered both face to face, virtually or through e-learning. They expect the solution to have an associated system to host any relevant e-learning and to track progress of individuals as they complete the corporate training programme. The estimated contract value is £800,000 excluding VAT, being £550,000 for the supply of the training and £250,000 for the supply of the system.

The contract is mainly for the supply of training services and is therefore a light touch contract. The supply of the system to host e-learning etc. is not within the specified light touch services and therefore if procured separately would not be considered a light touch contract but an above-threshold services/goods contract, procured under the general rules instead. However, as the system is an integral part of the requirement and cannot reasonably be procured separately without practical and financial consequences to the contracting authority, this contract would be treated as a light touch contract and subject to the light touch threshold and exemptions.

If the total contract value was £650,000, with the system element still valued at £250,000 and inseparable from the services element, then the contract would still be considered a light touch contract, but would benefit from the higher light touch threshold of £663,540 and could be procured as a below-threshold contract.

If, in either of the above scenarios, the system is not intrinsically linked to the training and could reasonably be supplied under a separate contract, then as this separate contract would be above the goods/services threshold the entire mixed contract cannot be treated as a light touch contract and must be procured under the general rules.

Mixed special regime contract elements

If a special regime contract includes additional elements that, if procured separately would be considered an above-threshold special regime contract of a different type, and separation of these elements is possible but the contracting authority chooses to award one contract anyway, then that mixed contract cannot be considered a special regime contract of any type and must be awarded in accordance with the general rules^{[footnote 2]}. For example, light touch services valued greater than the relevant light touch threshold cannot be procured as part of a utilities contract under the utilities provisions if that light touch element could be reasonably supplied under a different contract but the contracting authority chooses not to do so. Nor could the supply of additional above threshold utilities elements be procured in a light touch contract under the light touch provisions if the above threshold utilities provisions could be reasonably supplied under a different contract but the contracting authority chooses not to do so.

4. Selecting a Procedure

The competitive tendering procedures under the regime have been simplified from several prescribed procedures in the PCR (shown on the left-hand side in the diagram below) to two methods for conducting competition under the Act (shown on the right hand side in the diagram below):

Open Procedure Restricted Procedure Competitive Procedure with Negotiation Competitive Dialogue Procedure Innovation Partnerships Design Contest

→

Open Procedure Competitive Flexible Procedure

Open Procedure

Changes to the open procedure

The open procedure remains a single stage procedure (section 20(2)(a)) where there is no restriction on who can submit tenders and all information needs to be provided at the point of tender and is made available to all suppliers.

Exclusion grounds must be considered prior to assessing tenders (section 26) (supplier selection summary document). There is no longer a requirement to set conditions of participation, or selection criteria as they were previously known. Where conditions of participation are set, and a supplier fails to meet them, you are not obliged to consider the tender any further and the supplier must not be awarded the public contract.

The timescales for determining how long a supplier has to submit its tender (tendering period) have now reduced to^{[footnote 3]}:

• 25 days where tenders are submitted by electronic means

• 10 days where a qualifying planned procurement notice has been published

• 10 days in a state of urgency where any other minimum timescale is impractical

Tendering period means the period beginning with the day following the day on which a contracting authority invites the submission of tenders as part of a competitive tendering procedure and ending with the day by which tenders must be submitted.

Setting Time Limits

Whilst it may be beneficial in some cases to have a quicker procedure, contracting authorities must remember that the timescales mandated in the Act are just the minimum. A contracting authority must have regard to various factors when setting time limits including (but not limited to) the nature and complexity of the contract (section 54(1)) and the procurement objective to have regard to SME barriers and whether these can be removed or reduced (section 12(4)).

Further consideration should be given as to what timescales are appropriate and proportionate.

What should contracting authorities consider?

• Ensure sufficient time is allowed for suppliers to respond.

• If there is a need for them to subcontract, is additional time needed for suppliers to arrange this?.

• Ensure that timescales are realistic and do not result in unnecessary delays to the process if sufficient time is not allowed.

• The timescales start once all tender documentation, which includes all relevant and necessary information required by suppliers to submit a response, has been issued.

• There are no maximum time periods.

Tender notice for the open procedure

Under the Procurement Act 2023 the tender notice is still used to invite suppliers to submit a tender under the open procedure and must be published prior to commencing the process (section 21(1)(a)).

Regulation 18 of the Procurement Regulations 2024 sets out the information that must be contained in a tender notice for the open procedure, which includes, amongst other things:

• The subject matter and estimated value of the contract

• How the tenders will be assessed including any conditions of participation and the criteria for awarding the contract

• The timescales for both the procurement process and delivery of requirements

• Any other relevant information

In addition, to follow the thread of transparency, contracting authorities must also provide in the tender notice:

• The reasons why a preliminary market engagement notice was not published if preliminary market engagement had been carried out

• Where the contract is not to be awarded in lots, but it would have been reasonable and appropriate to do so, the reasons for not doing so

• Confirmation that a conflicts assessment has been undertaken.

In the open procedure, the tender notice and the associated tender documents (where used) should be published at the outset noting the obligation in section 21(5) that the contracting authority must be satisfied, before inviting tenders, that the tender notice or associated tender documents provide sufficient information in order for tenders to be prepared.

The associated tender documents may include information supplementing the tender notice, and may duplicate the information already stated in the tender notice where appropriate.

Modifications during the open procedure

The terms of an open procedure can be modified up until the tender deadline (section 31(1)(a)).This may include changes to:

• The requirement or specification

• Conditions of participation

• Award criteria

Where a modification is brought about by the contracting authority, for example due to new or additional information becoming available which is relevant to the market, contracting authorities must consider revising applicable tender deadlines and other timescales laid out in the process (section 31(4)). It will be sensible to revise the timescales based on the nature and complexity of the change and to ensure that all suppliers have the same time limits set based on the duty to treat suppliers the same.

Any modifications made during the open procedure must be communicated in writing at the time of modification. The contracting authority must amend and republish the tender notice and any tender documents affected by the modification or time limit changes.

Note that such modifications are modifications to the procurement process itself, and not modifications to the resulting contract which is covered in the Contract Governance Summary Document.

Competitive flexible procedure

Where the requirements are more complex, specialist or a large market exists, a competitive flexible procedure (section 20(2)(b)) may be more appropriate than an open procedure.

The competitive flexible procedure replaces many of the previous prescriptive procedures and provides the flexibility to design and run a bespoke procurement procedure and utilise the necessary commercial skills such as negotiation and dialogue. Contracting authorities have the flexibility to design their own process by building in multiple stages providing that the tender notice and associated tender documents clearly set out how the process will be carried out. Failure to comply with the process described in the notice and documents will mean there is grounds for legal challenge and would be subject to the necessary remedies (Remedies, Procurement Oversight and the Debarment List summary document).

In designing and conducting this procedure, contracting authorities must have regard to the procurement objectives and meet the procedural requirements applicable to the competitive flexible procedure, such as time limits and transparency. In addition, they must ensure that the process is proportionate to the contract having regard to the nature, complexity and cost of the contract and should be mindful of having a process which encourages suppliers to participate as well as being mindful of the associated costs and resources of both the contracting authority and the supplier.

Preliminary market engagement is recommended to set the context of the procurement, the objectives and explain how the process is intended to run to obtain feedback from suppliers.

The benefits of the competitive flexible procedure are that it will;

• Allow maximum flexibility to procure goods, works and services.

• Allow the design of a procurement process which best fits the organisational objectives, local needs and the nature of the market.

• Enable contracting authorities to use and take advantage of their commercial skills by including stages of negotiation and modern commercial tools.

• Reduce risk through fit for purpose procurements; and.

• Encourage innovation and attract a more diverse range of suppliers including SMEs.

The competitive flexible procedure summary document provides further detail on this procedure.

Direct Award

In the Procurement Act 2023, direct award in special cases (section 41) and switching to direct award (section 41) have replaced the negotiated procedure without prior publication procedure under PCR 2015.

Contracting authorities must only consider the use of a direct award where one or more of the grounds for direct award are met and ^{[footnote 4]}should first consider whether it is possible to undertake a competitive tendering procedure (open and competitive flexible). Direct award should only be used where a competitive tendering procedure has been explored and is not appropriate or cannot be used, even under the reduced timescales permitted in a state of urgency or any other exemptions.

The grounds for direct award in special cases are set out in Schedule 5 similar to those of Regulation 32 in the PCR 2015 (excluding Regulation 32(2)(a), which is dealt with under Section 43). Under Schedule 5 of the Procurement Act 2023, a direct award can be used where^{[footnote 5]}:

• The contract involves the production of a prototype or other novel goods or services for testing the suitability or researching the viability of producing or supplying the goods or services at scale and developing them for that purpose or for other research, experiment, study or development (prototypes and development).

• The goods, services or works can only be supplied by a particular supplier i.e. where competition is absent for technical reasons or due to the supplier having intellectual property or other exclusive rights and only a particular supplier can supply the goods, services or works and there is no reasonable alternative. It can also be used where the contract is for the creation or acquisition of a unique work of art or artistic performance. (Single Suppliers)

• The contract concerns good purchased on the commodity market (Commodities)

• Awarding a contract to a particular supplier will ensure particularly advantageous terms due to the supplier undergoing insolvency proceedings (advantageous terms on insolvency)

• The requirement for goods, services or works is strictly necessary for reasons of extreme urgency and cannot be procured via a competitive tendering procedure and has been brought about by circumstances unforeseeable by and unattributable to the contracting authority (Urgency)

Direct award can also be used for additional or repeat goods, services or works from the same supplier where the original contract was awarded under a competitive tendering procedure. This again is broadly similar to PCR 2015, however the timeframe in which the original contract must have been competitively tendered has increased from 3 years to 5 AND the intention to rely on a direct award for subsequent procurements must have been set out in the tender notice and associated tender documents.

New Ground – direct award to protect life, etc

Change: A new ground has been introduced to allow the award of a contract directly where a Minister considers it is necessary to protect human, animal or plant life or health, or to protect public order and safety.

Section 42 of the Procurement Act 2023 introduces a power for a Minister of the Crown to make regulations if it considers it necessary to allow certain specified contracts to be awarded in line with the same requirements for undertaking a direct award, i.e. following the same procedural and transparency requirements.

Should this occur and regulations are made, this will be communicated to contracting authorities via a procurement policy note (PPN) or other suitable means. This will set out the specified contracts and may, for example, include conditions that must be met before a direct award can be made.

Benefit: This will allow contracting authorities to respond quickly where necessary, for example in emergencies and unforeseen, large-scale events such as Covid-19 pandemic. However, before making a direct award under this ground a contracting authority will need to determine whether the contract is within scope of the Minister’s regulations.

Subject to what the regulations made by the Minister say, contracting authorities should still also consider whether a competitive tendering procedure can be undertaken in the circumstances

Example: An unknown contaminated substance started coming up from the sewers across England which may be a threat to animal and plant life. As a result, a Minister of the Crown considered it necessary to make regulations which allow contracting authorities to procure relevant goods and services directly to deal with removing the substance from the streets and the clean up operation whilst investigation work is underway to identify the substance. The regulations specified certain contracts could be awarded by direct award, the categories included were:

• any personal protective equipment required;

• cleaning substances and chemicals required to aid the clean up;

• veterinary services for affected animals;

• provision of specialist advice or cleaning services.

Within a local authority, a stakeholder from the street cleansing department wants to expedite procurement for street sweeping machines as some of their existing machines are now out of support, in need of repair or out of service. This is impacting their service levels. They are asking for a direct award to be used to procure new street sweeping machines as they will be used following the clean up operation and they have already identified a supplier.

This is an existing requirement that the contracting authority had failed to act upon sooner resulting in the equipment being out of support. Whilst the street sweeping machines are needed to keep the streets clean following the incident, they are not required to remove the substance. A direct award cannot be undertaken on the ground of to protect life etc as this does not fall within the categories in the regulations and it would not be appropriate to use the ground of urgency as the circumstances have been brought about by the contracting authority and should have been foreseen by the authority.

In this instance the direct award would not be compliant and a competitive tendering process should be undertaken.

Awarding a contract under a direct award

When using direct award, there may be circumstances where some form of competition is still possible and contracting authorities may consider some form of limited competition where it considers that to be appropriate and to meet its objectives, including the timescales required for contracting.

When there are a number of potential suppliers and scope to undertake such competition, contracting authorities are encouraged to do so, considering the procurement objectives - e.g. value for money - even in emergency situations where the direct award is required to protect life, etc.

The competition in its most basic form could be:

• requests for quotes and deciding on price.

• an expedited process involving negotiation with selected suppliers,

• requests for proposals (where a specific budget applies) to understand the selected suppliers’ methodology for delivery.

Before entering into a contract, a contracting authority must determine whether the supplier is an excluded or an excludable supplier. As is currently the case, a contract must not be awarded to a supplier who is an excluded supplier (i.e. a mandatory exclusion ground applies and the contracting authority has determined that the circumstances giving rise to the ground are continuing or are likely to occur again), unless the contracting authority considers that there is an overriding public interest to do so. This may be the case in certain circumstances such as:

• emergency situations to protect life etc,

• certain other urgent situations and

• certain infrastructure and defence/security related circumstances.

Where a supplier is an excludable supplier, then the contracting authority has the discretion to decide whether to directly award the contract to them or not. Further information on excluding a supplier can be found in the Supplier Selection Summary Document.

Transparency requirements for direct awards

Change: There is a new transparency notice^{[footnote 6]} which must be published prior to a contracting authority making a direct award (section 44). This notice replaces the optional voluntary transparency notice under the PCR 2015.

This requirement applies to all grounds covered under section 41 and schedule 5, except for:

• user choice contracts (paragraph 15 of schedule 5) covered in the light touch summary document

Benefit: If contracting authorities are able to publish the transparency notice early, prior to undertaking any engagement with suppliers, the market will be notified of the intention to undertake the direct award. This will help to identify any potential concerns amongst suppliers early on in the process before time and resources have been invested into finding a potential supplier. It will also help to identify if alternative suppliers exist for an opportunity the contracting authority thought only one supplier could deliver the requirement.

Regulation 26 of the Procurement Regulations 2024 sets out the information that must be contained in a transparency notice, which includes, amongst other things:

• The goods, services or works to be provided

• The direct award justification that applies and the reasons as to how the ground is met

• The supplier’s details (if known)

• An estimate of when the contract will commence.

Choosing the right procedure

The following characteristics can help determine which procedure could be used:

Open	Competitive Flexible	Direct Award
• Known requirement • Simple Requirement • Emerging Market (SMEs) • Small market • Established / known market	• Unknown solution • Complex Requirement • Novel / innovative goods and services • Large market • Would require formal engagement with bidders during the process (i.e. negotiation or dialogue) • Small specialist market	• Prototypes and development • Single supplier where only one supplier exists due to technical or IP reasons • Purchase of any additional or repeat goods from existing suppliers • Pursuant to regulations made by a Minister of the Crown • Purchase of commodities • Urgent requirements

5. Other means of Contracting

There are other procedures and means of contracting under the Act:

Frameworks and Dynamic Markets

Frameworks have been retained within the Procurement Act, but an additional open framework has now been introduced, which allows for the award of successive frameworks over a longer period on substantially the same terms and, in some circumstances, for suppliers to be appointed to each framework. In addition, The Procurement Act 2023 has introduced a new commercial tool, dynamic market^{[footnote 7]}, which are similar to dynamic purchasing systems and qualification system for utilities, in that they are a list of qualified suppliers who are eligible to participate in future procurements. Dynamic markets are a more flexible and agile commercial tool for contracting authorities which can be used for a wider range of goods, services or works than is the case for dynamic purchasing systems. More detail on these commercial tools, how they can be established and how to identify existing frameworks and dynamic markets and call off from them, can be found in the Frameworks and Dynamic Markets summary document.

Reserving Contracts to supported employment providers^{[footnote 8]}

Any public contract can be reserved to a supported employment provider (section 32). Contracting authorities should consider whether a reserved procurement would be suitable and may undertake preliminary market engagement to help inform the decision.

Where a contract is being reserved to a supported employment provider, only the competitive flexible procedure can be used. The open procedure cannot be used (section 32(1)) as the market is being restricted to suppliers who meet this requirement. As highlighted earlier in this module, with the competitive flexible procedure there is the opportunity to design and undertake a bespoke procurement process that best suits the contracting authorities requirements.

Horizontal and Vertical contracting arrangements

Horizontal and vertical arrangements are generally what are currently commonly known as the in-house exemptions; ‘Hamburg’ (reflecting horizontal arrangements) and ‘Teckal’ (reflecting vertical arrangements).

The practical application of these arrangements remains the same as under the PCR 2015 (regulation 12), the language has simply changed to better align with UK law rather than EU law and add clarity as to how the exemptions are applied.

The details of these arrangements are detailed under Schedule 2 of the Procurement Act^{[footnote 9]} and the regulations.

22. Tendering time limits: Cheat sheet / decision tree

This learning aid is designed as a quick reference guide to the different time limit requirements under the Procurement Act 2023.

Definitions

Participation period means the period beginning with the day following the day on which a contracting authority invites the submission of requests to participate in a competitive flexible procedure and ending with the day by which those requests must be submitted.

Tendering period means the period beginning with the day following the day on which a contracting authority invites the submission of tenders as part of a competitive tendering procedure and ending with the day by which tenders must be submitted.

Remember, these are minimum timescales. You should consider the nature and complexity of your requirements and allow sufficient time for suppliers to respond, particularly if there is a need for them to subcontract whilst balancing this against the importance of avoiding unnecessary delays.

All contracting authorities

Scenario	Participation period (days)
Minimum timescale	25
Where the contracting authority considers there to be a state of urgency that means that a 25 day participation period is impractical	10
The contract is a light touch contract	No minimum

Central government authorities

Scenario	Tendering period (days)
Where tenders may not be submitted electronically and all associated tender documents are not provided at the same time as the tender notice	35
Where tenders may not be submitted electronically but all associated tender documents are provided at the same time as the tender notice	30
Where tenders may be submitted electronically but all associated tender documents are not provided at the same time as the tender notice	30
Where tenders may be submitted electronically and all associated tender documents are provided at the same time as the tender notice	25
A qualifying planned procurement notice has been issued	10
Where the contracting authority considers there to be a state of urgency that means any other applicable minimum tender period is impractical	10
Where a contract is being awarded under a dynamic market	10
The contract is a light touch contract	No minimum

Non-central government authorities

Scenario	Tendering period (days)
Where tenders may not be submitted electronically and all associated tender documents are not provided at the same time as the tender notice	35
Where tenders may not be submitted electronically but all associated tender documents are provided at the same time as the tender notice	30
Where tenders may be submitted electronically but all associated tender documents are not provided at the same time as the tender notice	30
Where tenders may be submitted electronically and all associated tender documents are provided at the same time as the tender notice	25
A qualifying planned procurement notice has been issued	10
Where the contracting authority considers there to be a state of urgency that means any other applicable minimum tender period is impractical	10
Where a contract is being awarded under a dynamic market	10
The contract is a light touch contract	No minimum
Where you have included a condition of participation stage and only pre-selected suppliers are invited to submit a tender	10
Where you have included a conditions of participation stage and only pre-selected suppliers are invited to submit a tender, and you have agreed a timescale with those suppliers	No minimum

Decision tree - determining the minimum time limits

23. Mixed procurement: Decision tree

This learning aid is designed to assist you to determine whether or not the mixed procurement rules under the Procurement Act 2023 apply to your contract.

Part A - mixed procurement - above and below threshold

24a. Open procedure: Process flow

This learning aid is designed to demonstrate step by step the procedures under the general rules of the

Procurement Act 2023, including transparency requirements, minimum time periods and aspects of best

practice.

1. Publish planned procurement notice (optional) or qualifying planned procurement notice (minimum 40 days before tender notice if using to reduce timescales).

2. Publish preliminary market engagement notice (you must publish a preliminary market engagement notice if undertaking pre-market engagement, but pre-market engagement is optional) and undertake pre-market engagement (optional).

3. Publish tender notice and associated tender documents for open procedure.

4. Observe minimum tender timescales.

5. Determine whether the supplier is an excluded or an excludable supplier.

6. Assess whether the tender is suitable, including:

a. assessing the conditions of participation

b. where a supplier or any of their nominated subcontractor is not a UK or treaty state supplier whether you choose to disregard the tender

c. whether the tendered price is abnormally low

d. whether there is evidence of corruption or collusion

e. whether the tender meets all of the requirements

f. whether the tender has breached any procedural requirements

7. Assess award criteria.

8. Issue assessment summaries.

9. Publish contract award notice.

10. Observe mandatory standstill period - 8 working days.

11. Enter into contract (providing no issues were raised during standstill).

12. Publish contract details notice and contract where applicable (contracts over £5m).

13. Could happen at any time during the term of the contract:

a. publish contract payment notice (where applicable - payments over £30k)

b. publish contract performance notice (where applicable)

c. publish payments compliance notice

d. publish contract change notice (if / when modifications are made) and observe voluntary standstill period (8 working days) if chosen to do so e. publish a copy of the modification (where applicable - contracts over £5m) 14. Publish contract termination notice.

The timescales cheat sheet is a useful related learning aid.

24b. Direct award: Process flow

This learning aid is designed to demonstrate step by step the procedures under the general rules of the Procurement Act 2023, including transparency requirements, minimum time periods and aspects of best practice.

1. Identify requirement.

2. Ensure direct award ground is met.

3. Identify supplier(s).

4. Assess best value (consider undertaking some form of competition where it is appropriate).

5. Determine whether the supplier is an excluded or an excludable supplier.

6. Publish a transparency notice.

7. Agree terms.

8. Publish contract award notice.

9. Standstill period - 8 working days (unless contract is based on grounds of urgency or to protect life etc).

10. Enter into contract (providing no issues were raised during standstill).

11. Publish contract details notice and contract where applicable (over £5m).

12. Could happen at any time during the term of the contract:

a. publish contract payment notice (where applicable - payments over £30k)

b. publish contract performance notice (where applicable)

c. publish payments compliance notice

d. publish contract change notice (if / when modifications are made) and observe voluntary standstill period (8 working days) if chosen to do so

e. publish a copy of the modification (where applicable - contracts over £5m)

13. Publish contract termination notice.

The timescales cheat sheet and unsuitable tenders or requests checklist are useful related learning aids.

25. Choosing a procedure

This learning aid is designed to assist you in determining the most suitable procedure under the Procurement Act 2023.

This is intended to be a guide to choosing the most appropriate procurement procedure, it is not an exhaustive list of all options available. You should make your own considerations and seek legal advice as necessary.

26. Direct award (section 41): Decision tree

This learning aid is designed to assist you in determining whether a direct award would be compliant under the Procurement Act 2023.

1. Why do you want to undertake a direct award?

a. The requirement is urgent (extreme and unavoidable urgency or necessary to protect life etc) - go to question 2

b. The requirement is specialist (prototypes and development, single supplier, user choice, defence and security) - go to question 5

c. A different reason (commodity, advantageous terms on insolvency, additional / repeat goods, services or works) - go to question 8

2. Is the contract necessary to protect life etc (see section 42)?

a. Yes - go to question 3

b. No - go to question 4

3. Have regulations been made in accordance with section 42 and is the contract a specified contract as defined by those regulations?

a. Yes - a direct award may be compliant in these circumstances - you should read the full justification in the act, check the guidance and if necessary consult with your commercial lawyers to assure yourself of compliance

b. No - go to question 4

4. Is the requirement necessary due to extreme and unavoidable urgency, which is not caused by or foreseeable by the contracting authority, meaning a competitive tendering procedure cannot be run?

a. Yes - go to question 11

b. No - a direct award may not be compliant in the circumstances

5. Is the direct award for a prototype, for research and development purposes or where there is only a single supplier?

a. Yes - go to question 11

b. No - go to question 6

6. Is the contract a user choice contract (see schedule 5 (15-17)) ?

a. Yes - a direct award may be compliant in these circumstances

b. No - go to question 7

7. Is the direct award for a defence and security contract (see schedule 5 (18-20))?

a. Yes - go to question 11

b. No - a direct award may not be compliant in the circumstances

8. Is the contract for goods purchased on a commodity market?

a. Yes - go to question 11

b. No - go to question 9

9. Will the award of the contract to a particular supplier be particularly advantageous to the contracting authority due to the supplier undergoing insolvency proceedings?

a. Yes - go to question 11

b. No - go to question 10

10. Is the direct award for the supply of goods, services or works from an existing supplier which are an extension to or partial replacement of goods, services or works where a change of supplier would result in incompatibility or disproportionate technical difficulties?

a. Yes - go to question 12

b. No - go to question 11

11. Is the direct award for repeat goods, works or services that have been competitively tendered previously in the last 5 years and you set out your intention to direct award for subsequent procurements for similar goods, services and works in the tender notice or associated tender document?

a. Yes - go to question 12

b. No - a direct award may not be compliant in the circumstances

12. Is the supplier an excluded supplier?

a. Yes - go to question 13

b. No - go to question 14

13. Is there an overriding public interest to award the contract to this supplier?

a. Yes - a direct award may be compliant in these circumstances - you should read the full justification in the act, check the guidance and if necessary consult with your commercial lawyers to assure yourself of compliance

b. No - go to question 14

14. Is the supplier excludable and you have decided not to exclude them?

a. Yes - a direct award may not be compliant in the circumstances

b. No - a direct award may be compliant in these circumstances - you should read the full justification in the act, check the guidance and if necessary consult with your commercial lawyers to assure yourself of compliance

28. Identifying risk

This learning aid is designed to assist you in identifying the types of risks that may exist during the life of the contract and recommends actions you should take in your procurement process to deal with such risks.

Identifying the type of risk

I know the type of risk, what should I do now?

For unknown unknown

Undertake pre-market engagement to help identify potential risks using market / supplier knowledge.

For known known

Undertake pre-market engagement to help identify any other potential risks using market / supplier knowledge.

Design an appropriate specification that considers the risks.

Develop relevant KPIs to manage the risk or likelihood of it occurring.

Include full details of the risks within your tender documentation and the relevant notices, outlining who the risks will be assigned to.

For known unknown

Undertake pre-market engagement to help identify any other potential risks using market / supplier knowledge.

Design an appropriate specification that considers the risks.

Develop relevant KPIs to manage the risk or likelihood of it occurring.

Include details of the risks within your tender documentation and relevant notices, such as:

a. how the risk, or risks, may impact on the performance of the contract

b. why it is not possible to address the potential impact of such risks upfront in the contract

c. who the risks are assigned to i.e. contracting authority or supplier

d. the possibility that the contract may require modification if one of the identified risks materialise

In the future, you may be able to modify your contract should the risk materialise and the contract cannot be performed to the satisfaction of the contracting authority without any modification, providing awarding a new contract would not be in the public interest.

29. Pre-procurement transparency

This learning aid is designed to demonstrate how the pre-procurement transparency requirements can be used. Depending on the nature of your requirement and the market you may wish to use the planned procurement notice and the preliminary market engagement notice as part of your procurement process - either of which could be published first, you also have the option to use one or the other or none at all.

The scenarios below show the different ways the planned procurement notice, preliminary market engagement notice and tender notice may be sequenced:

Scenario 1

You are aware of an upcoming procurement from your pipeline where you may need to reduce your timescales and you would like to undertake some pre-market engagement prior to issuing the tender notice.

1. Qualifying planned procurement notice

2. Preliminary market engagement notice

3. Tender notice

Scenario 2

You are aware of an upcoming procurement so would like to alert the market early, whilst preparing your pre-market engagement

approach, but do not intend on reducing your timescales and you would like to engage later with the market prior to issuing the tender notice.

1. Planned procurement notice

2. Preliminary market engagement notice

3. Tender notice

Scenario 3

You would like to or have already undertaken pre-market engagement and that engagement results in the need to reduce timescales at the tender stage.

1. Preliminary market engagement notice

2. Qualifying planned procurement notice

3. Tender notice

Scenario 4

You have already undertaken pre-market engagement and the response was limited. To generate more competition you use a planned procurement notice to add further information to the market of your upcoming opportunity but do not wish to rely on this to reduce timescales.

1. Preliminary market engagement notice (published after the event to inform the market of the outcomes)

2. Planned procurement notice

3. Tender notice

Scenario 5

You are aware of an upcoming procurement from your pipeline that needs its timescales reduced but does not require any pre-market engagement.

1. Qualifying planned procurement notice

2. Tender notice

Scenario 6

You would like to alert the market to an upcoming opportunity to generate competition but do not wish to rely on this to reduce timescales or undertake any pre-market engagement.

1. Planned procurement notice

2. Tender notice

Scenario 7

You would like to or have already undertaken premarket engagement and there is sufficient interest to not require any additional notice to generate competition and you do not wish to reduce timescales at the tender stage.

1. Preliminary market engagement notice

2. Tender notice

Scenario 8

You are aware of an upcoming procurement from your pipeline where you may need to reduce your timescales and would like to undertake some premarket engagement prior to issuing the tender notice.

1. Qualifying planned procurement notice

2. Preliminary market engagement notice

However, following the pre-market engagement some of the initial detail in the qualifying planned procurement notice has changed significantly, and therefore it needs republishing in order to qualify for reduced tender timescales.

3. Qualifying planned procurement notice

4. Tender notice

30. Procurement: Checklist

This learning aid is designed to assist in carrying out a compliant award of public contract following a competitive tendering procedure under the Procurement Act 2023. It includes the transparency requirements and aspects of best practice. This is not an exhaustive list and should be considered alongside your organisation policy.

Plan

1. Consult with the wider organisation on upcoming procurement requirements

2. Complete and publish upcoming procurement details on your pipeline notice

3. Determine whether preliminary market engagement is required - if required, publish a preliminary market engagement notice

Define

1. Publish a planned procurement notice / qualifying planned procurement notice (optional)

2. Conduct preliminary market engagement

3. Confirm the requirement and conduct project validation review (conduct delivery model assessment and should cost modelling)

4. Identify risks

5. Undertake conflicts of interest assessment

6. Determine relevant contract threshold and if special regime applies

7. Agree appropriate procurement procedure

8. Draft scope

9. Draft conditions of participation (if required)

10. Draft minimum requirements

11. Draft award criteria (MAT) and assessment methodology

12. Consider and include timescales that are reasonable and proportionate to the requirement

13. Define any other procedural requirements

14. Draft KPIs

15. Draft associated tender documents including terms and conditions

Procure

1. Publish a tender notice and associated tender documents

2. Record and manage clarifications

3. Deal with any modifications as as result of clarifications (where required)

4. Brief assessment panel on assessment methodology

5. Record tender submissions

6. Check debarment list

7. Assess exclusions

8. Assess tender suitability, including the following in a public contract:

a. Assessing the conditions of participation

b. Where a supplier or any of their nominated sub-contractors are not a UK or treaty state supplier whether you choose to disregard the tender

c. Whether the tendered price is abnormally low

d. Whether there is evidence of corruption or collusion

e. Whether the tender meets all of the requirements f. Whether the tender has breached any procedural requirements

9. Assess tenders

10. Produce and issue assessment summaries

11. Publish a contract award notice

12. Commence 8 day standstill (where required)

13. Record and manage any clarifications

14. Agree minimum of 3 KPIs for reporting purposes with successful supplier (where required)

15. Publish a contract details notice and a copy of the contract where required

Manage

1. Act in accordance with the 30 days payment terms

2. Publish contract performance notices to report on KPIs where applicable

3. Act in accordance with the supplier breach or poor performance reporting requirements if required

4. Publish a contract change notice and copy of modification for contract amendments or extensions where applicable - consider observing a voluntary standstill period

5. Publish contract payment notices for spend reporting requirements of individual amounts of £30,000 or more where applicable

6. Publish a contract termination notice issued within 30 days from the day the contract ends

31. Preliminary market engagement checklist

This learning aid is designed to be a list of considerations you should take when undertaking preliminary market engagement, this includes requirements under the Procurement Act 2023 and aspects of best practice.

Action

1. Check Register of Commercial Tools for any existing frameworks or dynamic markets that you could use as your route to market

2. Check central digital platform for supplier performance data and spend for that category to obtain greater understanding of current suppliers to the public sector, understand any performance issues or trends and level of spend

3. Use any available market analysis tools or software to understand current market conditions and identify market leaders, new entrants, SMEs, VCSEs

4. Consider who you want to engage with or encourage to participate (have regard to SMEs, VCSEs etc)

5. Consider how you will engage with the market (questionnaire, supplier day, meetings etc)

6. Develop any necessary documentation or make arrangements for engagement (ensuring it is easily accessible and fit for purpose)

7. Publish preliminary market engagement notice

8. Consider other means of advertising (using own e-procurement system / web page / specialist publications if necessary etc) - preliminary market engagement notice must be published first

9. Undertake engagement and record minutes or key findings

10. Collate and review any relevant information or findings from the engagement to develop your procurement strategy

11. Identify information which can be shared as part of the tender process where relevant and obtained for audit trail purposes

33a. Tender notice fields: Open procedure

Tender notices: open procedure

Regulation 18 - (1) This regulation sets out other information which must be included in a tender notice for

the award of a public contract through an open procedure published under section 21(1) of the PA 2023.

(2) The information is:

(a) the contracting authority information

‘Contracting authority information’ means:

a. where there is one contracting authority for a procurement, the name of the contracting authority

b. where there are two or more contracting authorities acting jointly for a procurement:

• i. the name of the contracting authority that the contracting authorities acting jointly determine is the lead authority for the procurement, and

• ii. the name of each of the other contracting authorities

c. a contact postal address and email address for the contracting authority or for each contracting authority acting jointly

d. the unique identifier for the contracting authority or for each.contracting authority acting jointly

e. for any person carrying out the procurement, or part of the procurement, on behalf of the contracting authority or one or more of the contracting authorities acting jointly:

• i. the person’s name

• ii. the person’s contact postal address and email address

• iii. the person’s unique identifier, and

• iv. a summary of the person’s role, and

f. in respect of a notice published by the contracting authority, the name, contact postal address and email address of the person who should be contacted in the event of an enquiry about the notice

(b) the title of the procurement

Title should be relative to what suppliers may search for, e.g. supply of multi-site, multi region security provision.

(c) the unique identifier for the procurement

Will be issued during creation of the first notice for your procurement on the central digital platform e.g. pipeline notice, planned procurement notice, preliminary market notice, tender notice.

(d) a statement that the tender notice is for the award of a public contract through an open procedure in accordance with section 20(1) and (2)(a) of the PA 2023 State and copy on any issued associated tender docuements: This tender notice is for the award of a public contract through an open procedure in accordance with section 20(1) and (2)(a) of the Procurement Act 2023.

(e) whether the tender notice relates to a special regime contract and, if so, whether that contract is:

• i. a concession contract

• ii. a defence and security contract

• iii. a light touch contract, or

• iv. a utilities contract

Confirm if a special regime contract applies.

(f) the contract subject-matter

“Contract subject-matter” means the following information, so far as it is known to the contracting authority when the information is published -

a. whether the contract is mainly for the supply of goods, services or works

b. a description of the kinds of goods, services or works which will be supplied

c. a summary of how those goods, services or works will be supplied

d. the estimated date when, or period over which, the goods, services or works will be supplied

e. the estimated amount of goods, services or works which will be supplied

f. the relevant CPV codes, and

g. the geographical classification, where it is possible to describe this

(g) the estimated value of the public contract

The estimate of the total contract value including any possible extensions, renewals etc. in accordance with schedule 3 of the Procurement Act.

(h) where the public contract is for goods, services or works which the contracting authority expects will be needed after the expiry of the contract:

• i. whether the contracting authority intends to carry out a subsequent procurement of similar goods, services or works in reliance on the direct award justification in paragraph 8 of schedule 5 to the PA 2023, or

• ii. an estimate, if possible, of the date when any subsequent tender notice will be published

This relates to the further or subsequent contract situation and what might happen after the conclusion of the contract you are procuring. The responses may be, for example:

• i. whether the contracting authority intends a “subsequent procurement” of “similar goods, services or works” by relying on the direct award justification provided at para 8 of schedule 5, PA 2023, or

• ii. “estimated if possible” when any subsequent tender notice inviting competition or transparancy notice intending direct award will be published

(i) whether an electronic auction will be used and, if so, the technical details of how suppliers may participate in the electronic auction

The procurement auction or reverse auction portal details that you will use. Clear instructions and ideally a link to some form of familiarisation or training resource for suppliers using the platform would be recommended.

(j) how tenders may be submitted and the date by when they must be submitted

This field requires the deadline for submissions of tenders and usually confirms any instructions if using eSenders e.g. “on the tender response forms provided in the commercial and technical envelopes”. Other details such as attachements or other returned information and/or data can be defined here.

(k) the award criteria, or a summary of the award criteria, for the public contract

The award criteria, the ranking, weighting or describing the improtance in another way. In more complex cases of award criteria, a summary of the award criteria with the detail described in the associated tender documents.

(l) the languages in which tenders or enquiries in connection with the tendering procedure may be submitted

Advise whether the tender submission shoud be made in English and/or other languages, such as Welsh or Gaelic or any alternative language are permitted.

(m) whether the public contract is a contract for which the United Kingdom has obligations under the GPA

Confirm if the contract is convered under the Agreement on Government Procurement signed at Marrakesh on 15 April 1994(b), as amended from time to time (see also s.4 of the procurement regs 2024 and PA 2023, schedule 1, s5(1).

(n) from the date when the Comprehensive and Progressive Agreement for Trans-Pacific Partnership enters into force for the United Kingdom, whether the public contract is a contract for which the United Kingdom has obligations under that agreement

Confirm if the contract is covered under trade obligations under this agreement here https:// commonslibrary.parliament.uk/research-briefings/cbp-9121/

(o) whether the public contract is awarded by reference to lots and, if so, for each lot:

i. the title of the lot

ii. the distinct number given to the lot by the contracting authority

iii. the following information, so far as it is known to the contracting authority when the tender notice is published -

• a. a description of the kinds of goods, services or works which will be supplied

• b. a summary of how those goods, services or works will be supplied

• c. the estimated date when, or period over which, the goods, services or works will be supplied

• d. the estimated amount of goods, services or works which will be supplied

• e. the estimated value of the lot

• f. the relevant CPV codes

• g. the relevant award criteria in relation to the lot

• h. any option in relation to the lot, and

• i. the geographical classification, where it is possible to describe this

As part of a contracting authorities duty to consider lots, this is the section where summative description of the lots, geographies, amounts and respective values by lot (inc VAT), which should correspond in total provided earlier in section (g).

(p) where the public contract is awarded by reference to lots—

• i. whether a supplier may only submit a tender for a maximum number of lots and, if so, the maximum number

• ii. whether a supplier may only be awarded a maximum number of lots and, if so, the maximum number, and

• iii. whether the authority will award multiple lots to the same supplier in accordance with criteria and, if so, a summary of the criteria

Assuming lots are adopted, the contracting authority may, for example make the following type of conditions:

• i. suppliers may bid for all lots (1 to 4) however

• ii. no-more than two lots will be awarded to any one supplier

• iii. where a supplier is the initially evaluated most economic tender on all 4 lots, the contracting authority is permitted to consider the two lots that the supplier prefers - whereas the suppliers 3rd and 4th preferencel will be subject to a re-evaluation with that supplier removed from the competition

(q) where the contracting authority considers under section 18(2) of the PA 2023 that the public contract could be awarded by reference to lots but it is not, the reasons for this, except in the case of a utilities contract or a light touch contract

The reasons for not using lots could, as an example, include, software being better performance managed and guaranteed within the ‘full-wrap’ supply of a bespoke system including hardware.

(r) a description of any option which will be included in the public contract:

• i. to supply additional goods, services or works, or

• ii. to extend or renew the term of the contract

Provided the rationale and scope is a defined option in the tendered contract, the contracting authority could:

• i. define an option or intent to add or increase the scope and value of the contract provided that the additions remain of the same purpose and reason as the original tender or

• ii. confirm a contracting authority option to offer extensions period(s) to the original contract or state an intent, subject to suitable performance and terms, an option to issue a further contract, perhaps to an equal terms as the 1st, to the successful supplier

(s) whether the contracting authority proposes to set the shortest minimum tendering period by reference to one of the following entries in the table in section 54(4) of the PA 2023 and, if so, which entry:

• i. entry 2 (certain contracts awarded by a contract authority which is not a central government authority subject to a negotiated tender period)

• ii. entry 3 (certain contracts awarded by a contracting authority which is not a central government authority where tenders may be submitted only by preselected suppliers)

• iii. entry 4 (a qualifying planned procurement notice has been issued)

• iv. entry 5 (state of urgency)

This section of the notice refers to s.54 of PA 2023, particularly subsection (3) and the approach to correctly determining the minimum amount of time a tendering period, under this part, must equal or exceed. If the minimum tendering period is to be used, the circumstance should be stated, for example:

• i. contracting authorities other than central government authority where, by consent of the parties, the tender period had been negotiated and agreed by the parties (to the tender)

• ii. contracting authorities other than central government authority where tenders can only be submitted by pre-selected suppliers

• iii. where a qualifying planned procurement notice has been previously issued and contained such an intent

• iv. where a contracting authority genuinely believes there to be a genuine state of urgency and where the contracting authority considers any other means of applicable minimum tender is impractical

(t) whether the contracting authority considers that the public contract or any lot forming part of the contract may be particularly suitable to be awarded:

• i. to a small or medium-sized enterprise, or

• ii. to a non-governmental organisation that is value-driven and which principally reinvests its surpluses to further social, environmental or cultural objectives This section is where confirmation is given if it is considered the whole, or any particular lot is suited to SME’s or NGO’s.

(u) whether associated tender documents are being provided in accordance with the tender notice at the same time that the notice is published and, if so:

• i. the title of each associated tender document,

• ii. whether each associated tender document is attached to the tender notice, and iii. if an associated tender document is not attached to the tender notice, a link to the web page where it is provided

This is where definition of associated tender documents should either confirm attachments or whether links will be provided to data rooms, etc. for access to related tender resources.

(v) whether an associated tender document is being, or may be, provided in accordance with the tender notice after the date when that notice is published and, if so, a link to the web page where it will be provided, or an explanation of how the document will be provided

Typically this could be used where a ‘data-drop’ might be provided after publication of the tender notice and associated tender documents.

(w) a description of any technical specifications which are expected to be met or a cross reference to where they can be accessed

Provided these are available, a simple discription or reference to the appropriate location within the associated tender documents.

(x) a description of any conditions of participation under section 22 of the PA 2023

Any conditions of participation set that the supplier must meet to be awarded the contract in accordance with s.22, e.g. legal, financial and/or technical ability to perform contract.

(y) any payment terms (in addition to those mentioned in section 68 of the PA 2023)

This could relate to such as staged payments or gateways.

(z) a description identifying any risk that:

• i. the contracting authority considers:

a. could jeopardise the satisfactory performance of the public contract, but

b. because of its nature, may not be addressed in the public contract as awarded, and

• ii. may require a subsequent modification to the public contract under paragraph 5 of schedule 8 to the Procurement Act 2023 (modification of contract following materialisation of a known risk)

What you define here will determine the extent and scope of whether the materialisation of a risk and the need for modification under paragraph 5 of Schedule 8 to the Procurement Act 2023 to enable satisfactory performance in limited circumstances can be conducted by the contracting authority. The detail of such should be drafted into the tender notice and/or associated tender documents.

(z1) the estimated date when the public contract will be awarded

The estimated date.

(3) In paragraph (2), “electronic auction” means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders

An electronic auction, presented by suppliers of either new prices or new value for quantifiable non-price elements related to the evaluation criteria would typically mean informed best bids for a part of tender, e.g. a reverse auction for certain goods administered through an appropriate electronic reverse bidding tool.

(4) Nothing in this regulation prevents a contracting authority from publishing other information that relates to the same procurement in the notice

This means the detail in tender notice and associate tender documents can be far more detailed than required in the tender notice.

(5) This regulation does not apply to a tender notice for the award of a framework through an open procedure (see instead regulation 20)

This confirms a different tender notice is required for establishing frameworks.

33b. Below-threshold tender notice

Below-threshold tender notices

Regulation 24 (1) This regulation sets out other information which must be included in a below-threshold tender notice published under section 87(1) of the PA 2023.

(2) The information is:

(a) the contracting authority information

‘Contracting authority information’ means:

a. where there is one contracting authority for a procurement, the name of the contracting authority

b. where there are two or more contracting authorities acting jointly for a procurement

• i. the name of the contracting authority that the contracting authorities acting jointly determine is the lead authority for the procurement, and

• ii. the name of each of the other contracting authorities

c. a contact postal address and email address for the contracting authority or for each contracting authority acting jointly

d. the unique identifier for the contracting authority or for each contracting authority acting jointly

e. for any person carrying out the procurement, or part of the procurement, on behalf of the contracting authority or one or more of the contracting authorities acting jointly:

• i. the person’s name

• ii. the person’s contact postal address and email address

• iii. the person’s unique identifier, and

• iv. a summary of the person’s role, and

f. in respect of a notice published by the contracting authority, the name, contact postal address and email address of the person who should be contacted in the event of an enquiry about the notice

(b) the title of the procurement

Title should be relative to what suppliers may search for, e.g. Supply of multi-site, multi region security provision, for the delivery of…

(c) the unique identifier for the procurement

Will be issued during creation of the first notice for your procurement on the central digital platform.

(d) the contract subject-matter

“Contract subject-matter” means the following information, so far as it is known to the contracting authority when the information is published:

a. whether the contract is mainly for the supply of goods, services or works

b. a description of the kinds of goods, services or works which will be supplied

c. a summary of how those goods, services or works will be supplied

d. the estimated date when, or period over which, the goods, services or works will be supplied

e. the estimated amount of goods, services or works which will be supplied

f. the relevant CPV codes, and

g. the geographical classification, where it is possible to describe this

(e) the estimated value of the contract

This is the estimated maximum contract value at the time of issue and includes extensions and VAT.

(f) how tenders may be submitted and the date by when they must be submitted

This field requires the deadline for submissions of tenders and usually confirms any instructions if using eSenders.

(g) whether the notice is being used to invite tenders for a special regime contract and, if so, whether that contract is a defence and security contract or a light touch contract

Confirm if the contract is a defence and security or a light-touch contract.

(h) whether the contracting authority considers that the contract or any lot forming part of the contract may be particularly suitable to be awarded:

• i. to a small and medium-sized enterprise, or

• ii. to a non-governmental organisation that is value-driven and which principally reinvests its surpluses to further social, environmental or cultural objectives

This section is where confirmation is given if it is considered the whole, or any particular lot is suited to SME’s or NGO’s.

(i) an explanation of the criteria against which the award of the contract will be assessed

The award criteria, the ranking, weighting or describing the improtance in another way. In more complex cases of award criteria, a summary of the award criteria with the detail described in the associated tender documents.

(j) a description of any conditions of participation in relation to the award of the contract

Define any conditions of participation set that the supplier must meet to be awarded the contract.

(3) Nothing in this regulation prevents a contracting authority from publishing other information that relates to the same procurement in the notice.

This means the detail in tender notice and associate tender documents can be far more detailed than required in the tender notice.

1. Exemptions apply ↩

2. Exemptions apply for defence and security contracts ↩

3. Exemptions apply ↩

4. It is a requirement of paragraph 13 (urgency) of Schedule 5 that this is done ↩

5. Additional provisions apply for user choice contracts and defence and security contracts ↩

6. Exemptions apply ↩

7. Exemptions apply ↩

8. Additional provision for light touch contracts ↩

9. Exemptions apply ↩