Guidance

Module 5: Frameworks and dynamic markets

Published 22 April 2024

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This publication is available at https://www.gov.uk/government/publications/the-official-procurement-act-2023-e-learning/module-5-frameworks-and-dynamic-markets

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 an overview of the commercial tools known as frameworks and dynamic markets available under the Procurement Act 2023 , how these differ from the frameworks and dynamic purchasing systems of the PCR 2015 and qualification systems for utilities under the UCR 2016 and how contracting authorities can best utilise them. It will explain the transparency requirements related to the establishment, awarding and managing contracts under frameworks and dynamic markets, as well as the new register of commercial tools.

2. Overview

Frameworks have been retained in the Procurement Act 2023 and are contracts between a contracting authority and one or more suppliers that provide for the future award of contracts, via, what we refer to as a “call off”, by a contracting authority to a supplier. However there are some changes:

Change: In addition to the existing framework, a new concept of an open framework has been introduced (section 49), which is a scheme of frameworks that provides additional flexibility to appoint new suppliers during the life of the framework scheme.

Benefit: This means that the framework remains competitive, drives value for money and reduces the administration involved in undertaking a full procurement.

Change: Dynamic markets have been introduced which are similar to dynamic purchasing systems (DPS) and qualification systems for Utilities, in that they are a list of qualified suppliers who are eligible to participate in future procurements with the flexibility to be utilised for a wider range of goods, services or works than was previously the case for DPS (section 36).

Benefit: Dynamic markets can be used for a wider range of goods, services and works.

Change: Increased transparency requirements such as in tender notices for frameworks and dynamic market notices.

Benefit: Will give greater detail about frameworks and dynamic markets allowing full visibility of opportunities and their terms.

3. Frameworks

A framework must set out the selection process for the future award of contracts (call offs from the framework) (section 45) which are awarded without having to undertake a full tender process.[footnote 1]

The general rules around frameworks have remained broadly the same, in that, for example:

  • They have a maximum four-year term[footnote 2] (although they can last longer if the contracting authority considers the nature of the goods, services or works to be supplied under contracts awarded under the framework warrant a longer term and clearly sets out the reasons for this in the tender notice[footnote 3]) (section 47).

  • Suppliers who are awarded a place on the framework remain fixed for the duration, and there is no minimum or maximum number of suppliers although a contracting authority may wish to limit suppliers.

  • They must set out the scope of goods, services and works to be procured under it (section 45(5)), in a lotted structure if applicable (section 18)

  • They must state the estimated value of the framework – i.e. the estimated total value of the contracts to be awarded under it (section 45(5))

  • They must set out the selection process to be followed when awarding contracts under it – which can be either award with or (in certain circumstances) without competition, or both (section 45(5))

  • They must set out the price payable under call offs or mechanism for determining the price payable (section 45(5))

  • They must clearly identify the contracting authorities it can be used by, this could be done through naming or categorising contracting authorities.

The changes to frameworks are:

Change: A term is now implied into every framework that allows a contracting authority to exclude a supplier from participating in any selection process under the framework if they are an excluded supplier or have, since the award of the framework, become an excludable supplier (section 48)

Benefit: This ensures that the suppliers on the framework continue to be fit to deliver public contracts and reduces risk in terms of the protection of public funds, the public, the environment, national security and the rights of their employees. The contracting authority is also protected as the implied term cannot be overridden (section 48(4)) therefore ensuring that contracting authorities retain the right to exclude such suppliers.

Either of the competitive tendering procedures (open or competitive flexible) (see procedures and competitive flexible summary documents) can be used when setting up a framework.

Open Frameworks

Open frameworks (section 49) have been introduced in the Procurement Act 2023 as a more flexible alternative to the existing framework arrangements. An open framework is a scheme of successive frameworks for the same goods, services or works on substantially the same terms. This means that the scope of the open framework, award criteria and the terms and conditions should remain substantially the same. However there is the ability to modify a framework in the scheme where it is in line with the requirements around modifications section 31 – if there has been a modification to a framework in the scheme, subsequent frameworks must still be awarded under a tender notice that is substantially the same as other tender notices in the scheme (section 49(9)).

Benefits:

Open frameworks are “reopened” (i.e. one framework in the scheme expires as the next one commences) periodically throughout the term to allow new suppliers to tender for a place on the framework. The framework must be reopened at least:

  • Once during the period of 3 years from award of the first framework under the scheme, and

  • Within a period of 5 years beginning on the award of the second framework in the scheme.

This means:

  • There is the opportunity to re-test the market and refresh the supplier base as and when market conditions change

  • Suppliers who are new entrants to the market have the ability to to join the open framework who may offer the most advantageous solutions

  • Improved value for money can be achieved through maintaining the level of competition through the appointment of new suppliers

  • There is the potential to reduce administrative overheads of not having to re-assess all suppliers tenders.

There is no limit on the number of times the framework can be reopened or the number of frameworks within the scheme. For example, a contracting authority may choose to reopen on an annual basis depending on the type of requirement and pace of the market.

Open frameworks can run for a maximum duration of 8 years, and therefore can better align to longer term projects or requirements (section 49(2)(c))

Establishing an open framework

Just as when establishing a framework, either of the competitive tendering procedures (open or competitive flexible) (see procedures and competitive flexible procedure summary documents) can be used when setting up an open framework.

Many of the same framework rules apply to an open framework in that it must, for example:

  • set out the scope of goods, services and works to be provided under it, in a lotted structure if applicable.

  • state the estimated value of the open framework, i.e. the estimated total value of the contracts to be awarded under it.

  • set out the selection process to be followed when awarding contracts under it – which can be either award with or (in certain circumstances) without competition, and how the competition can be undertaken (e.g. allow for multi-stage processes)

  • set out the price payable under call offs or mechanism for determining the price payable.

  • clearly identify the contracting authorities it can be accessed and utilised by, this could be done through naming or categorising contracting authorities.

Number of suppliers

There is no limit to the number of suppliers that can be admitted on to the open framework, a contracting authority can determine whether or not they would wish to limit the number of suppliers to be awarded a place. However, there must be a minimum of two suppliers for the full flexibility of the open framework to apply.

Reopening and awarding an open framework

The diagram below shows the basic reopening process:

The basic reopening process in 4 steps. Step 1, the competitive tender procedure: Assessment. Award of contracts for Framework 1. Step 2, Framework 1: Reopen within 3 years of award Framework 1. Award of contracts for Framework 2. Step 3, Framework 2: Reopen within 5 years of award of Framework 2. Award of contracts for Framework 3. Step 4, Framework 3: Expires 8 years after award of Framework 1.

The framework in the scheme immediately prior to the award of the next framework must expire when the new framework in the scheme is awarded (section 49(2)(b)). Any ongoing selection processes for the award of a call off under the previous framework in the scheme can continue beyond the expiry of that framework but no new ones can start (section 49(3)).

The term of the framework must be set out in the framework tender notice and / or associated tender documents (Regulation 20) (as well as in the framework (section 45(5)(e))), however contracting authorities may wish to allow for extension periods in one or more of the frameworks in the scheme to provide additional flexibility. The benefit of doing so is that it provides an option as to whether the framework is reopened at that point or extended, which may be influenced by market conditions. However, these extension periods must not mean that the term of a framework in the scheme extends beyond the required reopening periods.

Example:

A tender notice for a framework sets out an open framework of 8 years with the intention that it is to be opened every 2 years, however the initial framework has an extension option of a year.

  • Framework 1 – has an initial term of 2 years with an option to extend for a further year, with an expiry date 8 years from the award of the framework.

  • As the expiry of Framework 1 approaches, the contracting authority determines that due to the current market conditions taking the extension would be appropriate.

  • Framework 1 now expires 3 years after it was awarded, which is compliant with the required opening periods of the open framework. It will still expire 8 years from the award of framework 1.

If following the competitive tendering procedure only one supplier is appointed to the framework then the open framework overall would be limited to a maximum of 4 years from the point of award of the single supplier framework (section 49(6)). However, the open framework can still be reopened and new suppliers appointed during this period, but if there is more than one supplier awarded a place, then the open framework still can not be extended beyond the four year period.

Example:

A tender notice for a framework sets out an open framework for a maximum term of 8 years with the intention that it is to be opened every 2 years and limited to 5 suppliers

  • Framework 1 – 3 suppliers awarded.

  • The open Framework was reopened at year 2 and only 1 supplier was awarded to Framework 2.

  • Framework 2 and the overall open framework can now only last 4 years from the date framework 2 commenced. This means that the open framework can last a total of 6 years (the first 2 years under framework 1, plus 4 years under framework 2 or any future frameworks) and not the maximum 8 year term. If more suppliers are awarded when it is reopened at a later date, the maximum term remains 6 years (i.e. 4 years from the commencement of the single supplier framework).

  • The open Framework was reopened at year 4 and 4 suppliers were awarded a place on Framework 3. Framework 3 and therefore the open framework expired after 2 years.

Appointing suppliers to an open framework

Where there is no limit on the number of suppliers, then existing suppliers from a previous framework in the scheme may be re-awarded a place on the framework based on one of the following:.

  • The fact that the supplier has previously been awarded to a framework in the scheme, i.e. be carried forward.

  • A tender relating to an earlier award.

  • A new tender relating to the re-award.

(section 49(4))

Where the number of suppliers has been limited, a contracting authority may only re-award to an existing supplier based on either of the following:

  • A tender relating to an earlier award

  • A new tender relating to the re-award

(section 49(5))

The contracting authority should set out the process for reopening and awarding the framework within the associated tender documents for the framework. This process should include how existing suppliers would be dealt with; whether (if appropriate) they are required to confirm that they wish to remain on the framework, and whether they wish to be evaluated using their previous tender or submit a new tender. Contracting authorities must adhere to the process that they have set out.

The award criteria for appointing suppliers to the framework must remain substantially the same for each framework in the scheme, allowing all suppliers tenders to be assessed on the same terms. Frameworks within a scheme must be substantially the same (section 49(1)).

Example – limiting suppliers:

A contracting authority has reopened an open framework after 2 years (Framework 1) and is assessing the tenders for Framework 2. The number of suppliers on the framework is limited to 3.

Supplier A is an existing supplier, awarded a place on Framework 1. They have chosen not to resubmit a tender, and have maintained the assessment scoring from the award of Framework 1. Suppliers B and C are also existing suppliers, but have submitted a new tender to be assessed. Suppliers D and E are new suppliers.

Assessment scores:

Framework 1 Score Framework 2 Score
Supplier A 85% 85%
Supplier B 72% 75%
Supplier C 70% 65%
Supplier D N/A 74%
Supplier E N/A 70%
Assessment scores table. Supplier A’s Framework 1 score is 85% and their Framework 2 score is 85%. Supplier B’s Framework 1 score is 72% and their Framework 2 score is 75%. Supplier C’s Framework 1 score is 70% and their Framework 2 score is 65%. Supplier D’s Framework 1 score is not applicable, and their Framework 2 score is 74%. Supplier E’s Framework 1 score is not applicable, and their Framework 2 score is 70%.

Suppliers A, B and D will now be awarded a place on the framework and supplier C would lose their place.

Awarding in accordance with a framework or an open framework (calling off a framework)

The rules for awarding a contract under a framework have broadly remained the same, however there is some additional flexibility in how suppliers on the framework can be assessed.

Change: There is now the ability to use conditions of participation to assess legal and financial capacity and technical ability to perform the call off contract as part of the competitive selection stage when calling off a framework, providing they are proportionate, taking into account the nature, cost and level of complexity of the contract (section 46(1) and (5)). This is in addition to any assessment of conditions of participation under section 22 as part of the procedure for the award of the framework. However, contracting authorities must comply with the competitive selection process set out in the associated tender documents for the framework.

Benefit: This ensures that only suppliers who meet the specific requirement of the call off contract, by meeting such conditions, can participate in the opportunity.

This would:

  • give greater confidence that the supplier can deliver the specific requirements

  • allow the number of suppliers to be reduced further, and

Example:

The framework allows for a multi-stage competitive selection process.

A contracting authority has a requirement that is within scope of Lot 1 on the framework, which has ten suppliers awarded.

The framework public liability insurance requirement was £5m, whereas for the contracting authority’s specific requirement they consider it would be proportionate to require £10m public liability insurance,

In the competitive selection process being used to award a call off contract, the contracting authority could include as a condition of participation a requirement for the supplier to make a commitment to having £10m public liability insurance in place on award of the contract and determine which suppliers on the lot could meet this requirement before inviting them to submit proposals to deliver the contract.

If only five of the ten suppliers could meet this requirement, and therefore only those five chose to participate then the contracting authority would only need to invite those suppliers to submit proposals. Where a supplier who cannot meet this requirement, still chooses to participate in the selection process, the contracting authority would be able to disregard their proposal on the basis that they fail to meet the condition.

Key points to remember when calling off a framework

  • If it is above the relevant threshold and not an exempted contract, a framework is a public contract and both below and above threshold contracts can be awarded in accordance with that framework.

  • For a framework with a single supplier, contracts can be awarded without competition (section 45(4)(a)).

  • Contracting authorities can ask suppliers to provide additional supplementary information which are specific to the requirements of the call off contract (section 45(6)).

  • For frameworks with more than one supplier, contracts may be awarded either with or without competition but in each case the selection process must be provided for in the framework tender notice (Regulation 20(c)) and the associated documents for the framework (section 45(5)). Contracts may only be awarded to a supplier without competition if the framework sets out the core terms of the contract to be awarded and an objective mechanism for supplier selection (section 45(4)(b)).

  • When undertaking a competitive selection process, proposals can only be assessed by reference to the same award criteria that tenders were assessed on when awarding the framework; new criteria cannot be introduced (section 46(8)), but the criteria can be refined (section 46(9)).

  • There are no minimum time limits for submission of proposals under a framework, however, a contracting authority must, for example, have regard to the nature and complexity of the contract being awarded and ensure time limits are the same for each supplier (section 54(1)).

  • A mandatory standstill period is not required for a call off contract (Section 51(3)(d)), however the contract award notice may provide for the provision of a voluntary standstill period (see assessment and award summary document).

Transparency requirements

Establishing the framework

In establishing the framework transparency obligations of the procedure being used to establish the framework must be followed (see procedures and competitive flexible procedure summary documents), as a reminder they are:

  • Planned procurement notice (optional).

  • Preliminary market engagement notice (where pre-market engagement is undertaken).

  • Tender notice (mandatory) with the relevant detail for the open or competitive flexible procedure depending on which procedure is being used.

  • Transparency notice (mandatory, unless the framework is being awarded by virtue of paragraph 15 of Schedule 5) where a framework is awarded [footnote 4]directly.

Tender Notice

Regulation 20 of the Procurement Regulations 2024 sets out the requirements for a tender notice for a framework. In addition to the basic details required in a tender notice, a tender notice for a framework must also set out, amongst other things:

  • Identification of the contracting authorities that may award contracts under the framework during its term.

  • the nature, scope and overall maximum value of the works, services or supplies that may be awarded under the framework.

  • whether they intend to appoint a maximum number of suppliers, specifying what that number is or alternatively to give a range.

  • whether the framework is an open or closed framework. And, for open frameworks may state the indicative reopening periods.

Reopening and awarding frameworks in a scheme of an open framework

To reopen and award frameworks in a scheme of an open framework, the following must be published:

  • A new tender notice – This must be substantially the same as the tender notice published originally for the award of the framework. This notice is used to re-advertise the opportunity and the next framework in the scheme and will link back to the original tender notice for the framework.

  • Assessment summaries (not published but provided to suppliers).

  • A contract award notice.

  • A contract details notice.

Awarding under a framework (calling off)

Under a framework, a tender notice is not published when undertaking a procurement under the framework. However, where a competitive selection process is being used, there is a requirement to notify and invite all suppliers who are capable of meeting the requirement (e.g. under a specific lot if applicable) to participate in the opportunity.

Before awarding a call off, a contract award notice must be published and following contract award a contract details notice and, if the value of the contract is over £5 million, a copy of the contract must be published (see assessment and award summary document).

4. Dynamic Markets

The Procurement Act 2023 has introduced a new commercial tool, dynamic markets[footnote 5], which are similar to dynamic purchasing systems (DPS) and qualification systems for utilities, in that they are lists of qualified suppliers who are eligible to participate in future procurements. Dynamic markets offer greater flexibility to utilise them for a wider range of goods, services or works than dynamic purchasing systems did, which would benefit emerging and niche markets, rather than commonly used goods and services.

Benefits:

  • New suppliers can be added through the lifetime of the dynamic market

  • The use of the dynamic market can be particularly beneficial for emerging markets, as new suppliers can join at any time.

  • There are no restrictions on the term or the number of suppliers that can be part of the dynamic market.

  • Suppliers not on the dynamic market have visibility of new advertised opportunities, as tender notices are published for each procurement, so that they can submit an application for membership and participate in the procurement process.

  • Dynamic markets have a much greater scope than dynamic purchasing systems in that they can be set up for a wider range of goods, services and works covered under the Procurement Act 2023.

Establishing the Dynamic Market

Dynamic markets are established following the publication of a dynamic market notice (Section 39). What must be included in a dynamic market notice is set out in (Regulation 25). Although there is no duration mandated in the Procurement Act 2023, contracting authorities should consider whether they wish to impose a maximum or minimum term for the dynamic market. Consideration should be given when choosing to set a minimum or maximum duration, in that doing so may limit the flexibility and the attractiveness of the market to suppliers.

Dynamic markets will operate as a two-stage process:

1. the dynamic market is established and suppliers who meet the conditions for membership are admitted to the market

2. competitive flexible procedures are undertaken (and tender notices published) to award contracts.

Dynamic markets could be divided into categories or parts, as long as they are described in a manner that they can be easily identified by contracting authorities and potential suppliers.

Examples of how categories or parts could be defined include:

  • by reference to the value of contracts to be awarded, e.g., categories of low value (£500,000 or less), medium value (£500,001 – £1m) and high value (£1m plus);

  • by reference to the geographic areas in which contracts can be awarded e.g., categories by reference to local authority boundary areas; or

  • by reference to the specific types of works, services or supplies e.g., categories of maintenance services, cleaning services and catering services.

This is not exhaustive and other categorisation may be used as required.

Application for membership

Contracting authorities may set conditions for membership for a dynamic market, which are similar to the conditions of participation, in that they must be proportionate and only assess whether the suppliers have the legal and financial capacity and technical ability to perform the contracts awarded under the dynamic market (section 36(1)) (see supplier selection summary document).

Also, as is the case for conditions of participation, contracting authorities must not require:

  • the provision of audited annual accounts from suppliers that are not required by the Companies Act 2006 or an overseas equivalent to have their accounts audited (for example small companies);

  • insurance relating to the performance of a contract to be in place before a supplier becomes a member of the dynamic market or before an award of the contract under the dynamic market.

(section 36(2))

This allows suppliers, usually small and medium-sized enterprises, that are not legally required to have their accounts audited to provide alternative evidence of financial capacity and allows suppliers to commit to having insurance in place at the point they are awarded a contract under the dynamic market.

A contracting authority may not limit the number of suppliers that can be admitted to a dynamic market(section 36(7)(a)).

Suppliers can submit their application for membership at any time during the life of the dynamic market. Once received, the contracting authority who owns or has established the dynamic market must:

  • assess the application within a reasonable time.

  • consider whether the supplier is an excluded or excludable supplier. Where a supplier is an excluded supplier, the contracting authority must not admit them to the dynamic market. Where a supplier is an excludable supplier, the contracting authority can consider whether or not to admit them to the dynamic market (see supplier selection summary document).

  • ensure that the supplier satisfies the conditions for membership, and

  • inform the supplier of the outcome, together with the reasons for the decision as soon as reasonably practicable, although a specific timescale is not mandated by the Procurement Act 2023.

(section 36(6))

Unlike frameworks, the establishment of a dynamic market does not result in the award of a public contract, therefore in admitting a supplier to the dynamic market a standstill period does not have to be observed.

Where a supplier has been unsuccessful in being admitted to the dynamic market, they have the opportunity to reapply at any time and have their application assessed.

Managing the Dynamic Market

Modifying a dynamic market

Once the Dynamic Market has been established, modifications are permitted (subject to the procurement objectives such as to treat suppliers the same (unless differences justified) (section 12)), these include:

  • how the dynamic market will operate,

  • the goods, services or works for which the dynamic market can be used,

  • the categories of goods, services or works under the dynamic market and

  • the contracting authorities which can award contracts under the dynamic market.

However changes must not be made to the conditions for membership to the dynamic market (section 36(7)(b)). These must remain the same throughout the life of the dynamic market to ensure fairness to all suppliers.

After modifying the dynamic market, the dynamic market notice must be updated, covered later in this document. Contracting authorities will also be obligated to ensure that they maintain accurate and up to date information about the dynamic market via the register of commercial tools, which is detailed later in this document.

Re-assessing and removing suppliers from the market

Suppliers on the dynamic market may be reassessed at any time to check:

  • Their excluded or excludable status,

  • Whether they are on the debarment list

  • If they still meet the conditions for membership

A contracting authority must remove a supplier from the market if they have since joining the market been added to the debarment list on a mandatory exclusion ground section 37(1).

A contracting authority may remove a supplier from the market where the supplier:

  • Is considered by the contracting authority to be an excluded supplier but is not on the debarment list

  • Has, since becoming a member of the market, become an excludable supplier

  • Does not meet the conditions for membership or

  • Was an excludable supplier when it became a member of the market, but the contracting authority was not aware. (section 37(2)(a) and (b))

Whilst removing such suppliers is discretionary, it is best practice to do so to help ensure suppliers on the dynamic market continue to be fit to deliver public contracts and reduce risk in terms of the protection of public funds, the public, the environment, national security and the rights of their employees.

Before removing the supplier from the market, the contracting authority must inform the supplier of the decision to remove them and the reasons for doing so (section 37(4)).

Awarding contracts under a Dynamic Market (calling off)

When awarding a contract under a dynamic market, a competitive flexible procedure must be used as there is already a restriction on who can participate (by the requirement to be a member of the dynamic market) and therefore an open procedure cannot be used.

When the opportunity is advertised (by publishing a tender notice for dynamic markets (Regulation 21)), the contracting authority must include a statement that the tender notice is for the award of a public contract under a dynamic market. This allows suppliers who are not currently members of the dynamic market to submit an application for membership and participate in the procurement process if they are admitted to the market.

If a contracting authority is carrying out a procurement under a dynamic market, it can only consider tenders or requests to participate in the procurement from suppliers that are on the dynamic market (section 34(3)). This means that suppliers who are not already on the dynamic market must become members before their tenders/requests to participate can be assessed. Contracting authorities are required to consider applications for membership from suppliers who apply to join the market so that they are eligible to have their tenders/requests to participate assessed (section 34(4)). Only in exceptional circumstances due to the complexities of the procurement, which mean that the deadline for submission of tenders/requests to participate does not allow the contracting authority to consider the supplier’s application for membership in time, can a supplier be excluded or their tender rejected because they are not a member of a dynamic market (section 34(5)).

Where a contract is being awarded under a dynamic market established by another contracting authority, you should ask suppliers to confirm that they are a member of the relevant dynamic market when they submit their request/tender or, if they have submitted their tender or request to participate early, that they will be a member by the deadline for submission. Suppliers should be required to provide evidence of this. In some cases there may be a need to verify this with the contracting authority who established the dynamic market.

Contracting authorities may also wish to notify the dynamic market owner of their upcoming procurement and the deadlines for submissions, so that they can consider applications for membership within a reasonable period of time and admit suppliers within a reasonable period in compliance with their obligations (section 36(6)).

Whilst contracting authorities may set conditions for membership to join a dynamic market, they may still assess and exclude suppliers by reference to conditions for participation as part of the competitive flexible procedure when awarding a contract under a dynamic market (calling off) (section 20(5)(a)).

It is possible that a supplier who has become an excluded supplier since joining the dynamic market may still be a member. As there is an obligation to exclude an excluded supplier from participating in, or progressing as part of, the competitive flexible procedure, contracting authorities should check to ensure that such suppliers are identified and excluded (section 27(2)).

Although the minimum time limit for the submission of tenders under a dynamic market is 10 days (section 54(4)), contracting authorities should consider allowing as long as possible to allow suppliers to apply to join the dynamic market if they are not already members.

Only above threshold contracts can be awarded under a dynamic market[footnote 6]. This is because the submission of tenders is restricted based on the requirement for a supplier to be a member of the dynamic market. Below threshold contracts cannot be restricted by reference to a supplier’s suitability (section 85(1)), and suppliers have already been assessed based on this to become a member of the dynamic market.

However, they can be used for works contracts provided the contract value is:

  • For a central government authority, not less than £138,760

  • Otherwise, not less than £213,477.

Transparency

Notices for the establishment of dynamic markets are different. Rather than having a tender notice, contract award notice and contract details notice, etc., when establishing a dynamic market, the dynamic market notices[footnote 7] must be used and updated throughout the life of the market (section 39). The dynamic market notices (Regulation 25) are used to:

1. Advertise the dynamic market (Regulation 25(2)), the information includes:

  • Information about the goods / services or works to be procured via the dynamic market

  • Conditions for membership

  • Categories or parts

  • The authorities who can access the dynamic market

  • Dates for the establishment and where relevant the expiry of the dynamic market

  • Information about fees

2. Notify of the establishment of the dynamic market (Regulation 25(4)), the information includes:

  • Details of suppliers who have been admitted to to the dynamic market, and the categories / parts they have been admitted to where relevant

3. Notify of changes or modifications to the dynamic market (Regulation 25(6)), the information includes:

  • Details of suppliers being added or removed from the dynamic market, and the categories /parts they have been admitted to / removed from where relevant.

  • Date from which the modification will have effect.

  • Summary of any other modification made.

4. Notify of the termination of the dynamic market[footnote 8] (Regulation 25(8)):

  • State that the dynamic market has ceased to operate.

  • Date it ceased to operate.

Awarding a contract under a dynamic market

Change: A tender notice is required[footnote 9] to openly advertise an opportunity under a dynamic market. The tender notice should make it clear that being a member of the dynamic market is a requirement of the procurement.

Benefit: This alerts not only the existing members of the dynamic market of the opportunity but may also encourage new suppliers to submit an application for membership in order to participate.

5. Framework, open framework or dynamic market?

The table below summarises some of the key features to help determine which would be best suited for the type of requirement and the nature of the market. Pre-market engagement can also be used to help determine which type of framework would be most suitable.

Framework Open Framework Dynamic Market
Is it a public contract? Yes Yes – the frameworks in the scheme are each public contracts, but the open framework is not a contract No
Maximum duration 4 Years

Unless defence and security, utilities or justified and set out in the tender or transparency notice for the framework		 Maximum 8 Year term (with minimum reopening periods)

final framework in the scheme to expire 8 years from the day the first framework was awarded, unless single supplier		 No maximum term
Number of Suppliers No minimum or maximum of suppliers Minimum of two suppliers to take advantage of maximum 8 year term, no maximum No minimum or maximum of suppliers
Can number of suppliers be limited Yes Yes No
Ability to add additional suppliers throughout the term No Yes, when the framework is reopened Yes, throughout the term at any time
Flexibility to operate Award with or without further competition Award with or without further competition Must consider new applicants at every call off
Key features to help determine which framework to use, Framework, Open Framework or Dynamic Market. Question 1: Is it a public contract? Framework, yes. Open Framework, yes since the frameworks in the scheme are each public contracts but the open framework is not a contract. Dynamic Market, no. Question 2: What is maximum duration? Framework, 4 years unless defence and security, utilities, or justified and set out in the tender or transparency notice for the framework. Open Framework, maximum 8-year term (with minimum reopening periods) and the final framework in the scheme to expire 8 years from the day the first framework was awarded, unless single supplier. Dynamic Market, no maximum term. Question 3: What is number of suppliers? Framework, no minimum or maximum suppliers. Open Framework, minimum of two suppliers to take advantage of maximum 8-year term, no maximum suppliers. Dynamic Market, no minimum or maximum suppliers. Question 4: Can number of suppliers be limited? Framework, yes. Open Framework, yes. Dynamic Market, no. Question 5: Can you add more suppliers throughout the term? Framework, no. Open Framework, yes when the framework is reopened. Dynamic Market, yes at any time throughout the term. Question 6: Is there flexibility to operate? Framework, award with or without further competition. Open Framework, award with or without further competition. Dynamic Market, must consider new applicants at every call-off.

6. Estimating the Value of a Framework or Dynamic Market

Change: There is no longer a need to assign a value to the contracts that may be awarded under each individual lot, category or part of a framework or dynamic market market. Now it is only the value of the potential contracts for the framework or dynamic market as a whole that need to be stated.

Benefit: This prevents whole frameworks or dynamic markets from having to be re-procured because the value of one particular lot, category or part has exceeded the estimated value and allows much more flexibility across the framework as a whole.

Contracting authorities may still choose to publish the values associated with each lot, category or part depending on the nature of the requirement and the market, for example making the lot, category or part more attractive to larger suppliers or being clearer about smaller lots being aimed at small and medium-sized enterprises or new entrants. However, by doing so, those values would have to be adhered to and modified accordingly if needed and provided there was a ground available for doing so under the rules on modifying contracts (Contract Governance Summary Document).

7. Fees and charging

Through frameworks and dynamic markets contracting authorities may charge suppliers a fixed percentage fee of the contracts awarded to them under the framework or dynamic market[footnote 10]. Suppliers cannot be charged to gain access to a framework or a dynamic market. Fees must be set and stated in the tender notice or dynamic market notice and may not change during the lifetime of the framework or dynamic market, it should also include provisions as to how these fees will be paid.

8. Register of Commercial Tools

Previously there has been no easily available, searchable resource that contracting authorities can use in order to determine whether a framework or dynamic purchasing system currently provides the goods, services or works they are seeking.

Over time, a Register of Commercial Tools will provide a single location where details of all frameworks, dynamic markets, call off contracts awarded under them, and all charges applicable under them will be held.

This will be a publicly available tool to increase visibility and transparency, making it easier to find and compare active frameworks and dynamic markets. It will also reduce unnecessary searching, the payment of high fees to a specific agent to carry out a search or unnecessary work to undertake a full procurement exercise when a simple call off might have been possible.

Note: The register of commercial tools will only record those frameworks and dynamic markets set up under the Procurement Act 2023 and therefore won’t be in place at the commencement date.

9. Frameworks and dynamic markets established by non-contracting authorities

Under the Procurement Act 2023, contracting authorities cannot award public contracts under frameworks or dynamic markets established by private companies, except where the private company is acting as the agent of a contracting authority.

There is one exception which allows utilities to award contracts under a utilities dynamic market set up by any person as long as it complies with the requirements applicable to private utilities establishing a utilities dynamic market (Section 35(3)).

Organisations that are not contracting authorities are not regulated by the Procurement Act 2023 and therefore any frameworks or dynamic markets established by them will not be compliant with the Procurement Act 2023 as far as contracting authorities are concerned.

Contracting authorities have a responsibility to ensure that any framework or dynamic market they access and award a contract under is compliant with the Procurement Act 2023. In time, the register of commercial tools will help to identify frameworks or dynamic markets that have been established under the Act and that can therefore be used by contracting authorities.

It is common for third parties, who are not contracting authorities, to wish to partner with contracting authorities to establish a framework or dynamic market for commercial purposes. When entering into these partnerships it is important that contracting authorities consider the following:

  • The obligation to comply with the Procurement Act 2023 when setting up a framework or dynamic market sits with them as the contracting authority

  • The framework or dynamic market should be proportionate to the size of the organisation, for example a small district council setting up a national framework could carry significant risk.

It is advised that contracting authorities seek legal advice when considering such partnerships.

39. Frameworks vs dynamic markets: Cheat sheet

This learning aid is designed to highlight the different characteristics of frameworks, open frameworks and dynamic markets under the Procurement Act 2023 to assist you in determining which would be most suitable.

Framework, open framework or dynamic market?

Framework Open framework Dynamic market
Public contract? Yes Yes No
Maximum duration 4 years (unless defence and security, utilities or justified and set out in the tender notice for the framework) Maximum 8 year term (with minimum reopening periods) - final framework in the scheme to expire 8 years from the day the first framework was awarded No maximum term
Number of suppliers No minimum or maximum Minimum of two suppliers - to take advantage of maximum 8 year term No minimum or maximum
Can the number of suppliers be limited Yes Yes No
Ability to add additional suppliers throughout the term No

Suppliers are fixed from the point of award to termination (up to 4 years)		 Yes

Suppliers may be refreshed during the term of the open framework		 Yes

Suppliers can apply to join at any time
Market conditions Stagnant / stable Developing / limited new entrants Emerging / new entrants
Resource to establish and maintain • Any competitive tendering procedure can be used to establish

• May choose to reassess exclusions during the life of the framework		 • Any competitive tendering procedure can be used to establish

• Competitive process process must be repeated within required timescales to appoint new suppliers

• May choose to reassess exclusions		 • Assess applications for membership

• Applications can be submitted at any time and must be assessed within a reasonable time period

• May choose to reassess exclusions and conditions of membership during the life of the dynamic market
Awarding a contract (calling off) Award with or without competition from fixed pool of suppliers Award with or without competition from fixed pool of suppliers within a framework in the scheme Award with competition - must consider potential new members for every call off
Flexibility to adapt during lifetime None • Reopen and re-award framework as needed (within minimum parameters)

• Can add or remove suppliers in accordance with the processes set in the framework		 • Unlimited

• Open for new suppliers to join at any time

• Suppliers can only be removed based on exclusion grounds or failure to continue to meet conditions of membership
Best for… • Fixed need

• Small supply base

• Supplier and product certainty (quality, lead time)		 • Some flexibility required due to market development

• Value through repeated competition

• Manageable supply base		 • Large supply base with a mix of big suppliers and SMEs

• Agile response to innovation

• Social value, can be less resource intensive for SMEs and small local suppliers to participate

You should consider which type of framework is most appropriate for your particular requirement and the current market. Pre-market engagement can also be used to help determine which type of framework would be the most suitable solution.

40a. Frameworks and dynamic markets:establishing a framework - Process flow

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

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

3. Publish tender notice and associated tender documents for framework (open or competitive flexible procedure).

4. Observe participation stage and / or tendering period minimum 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. Undertake intermediate assessment(s) (if applicable for competitive flexible procedure) and assess tenders.

8. Issue assessment summaries.

9. Publish contract award notice.

10. Observe mandatory standstill period - minimum 8 working days.

11. Enter into contract.

12. Publish contracts details notice.

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

a. publish contract change notice (if / when modifications are made)

b. observe any voluntary standstill period (minimum 8 working days) if and when modifications are made

c. contract performance notice (in the event of breach or poor performance of the framework contract as specified in the T&Cs)

14. Publish contract termination notice when framework comes to an end.

40b. Frameworks and dynamic markets: establishing an open framework (initial and every framework in the scheme) - Process flow

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

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

3. Publish tender notice and associated tender documents for framework (open or competitive flexible procedure).

4. Observe participation stage and / or tendering period minimum 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. Undertake intermediate assessment(s) (if applicable for competitive flexible procedure) and assess tenders.

8. Issue assessment summaries.

9. Publish contract award notice.

10. Observe mandatory standstill period - minimum 8 working days.

11. Enter into contract.

12. Publish contract details notice.

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

a. publish contract change notice (if / when modifications are made)

b. observe any voluntary standstill period (minimum 8 working days) if and when modifications are made

c. contract performance notice (in the event of breach or poor performance of the framework contract as specified in the T&Cs)

14. Repeat process for reopening (linking back to initial tender notice notice).

15. Publish contract termination notice when framework comes to an end.

40c. Frameworks and dynamic markets: awarding a contract under a framework - with competition - Process flow

1. Invite framework suppliers to participate or tender.

2. Observe appropriate tender timescales.

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

4. Assess submissions.

5. Issue assessment summaries (optional).

6. Publish contract award notice.

7. Observe any voluntary standstill period - minimum 8 working days.

8. Enter into contract.

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

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

a. publish contract payment notice (where applicable - individual 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)

e. observe any voluntary standstill period (minimum 8 working days) if and when modifications are made

11. Publish contract termination notice.

40d. Frameworks and dynamic markets: awarding under a framework - without competition - Process flow

1. Assess relevant suppliers in accordance with the framework terms including determining whether the supplier is an excluded or an excludable supplier.

2. Publish contract award notice.

3. Observe any voluntary standstill period - minimum 8 working days.

4. Enter into contract.

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

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

a. publish contract payment notice (where applicable - individual 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)

e. observe any voluntary standstill period (minimum 8 working days) if and when modifications are made

7. Publish contract termination notice.

40e. Frameworks and dynamic markets: establishing a dynamic market - Process flow

1. Publish preliminary market engagement notice and undertake pre-market engagement. You must publish a preliminary market engagement notice if undertaking pre-market engagement, but pre-market engagement is optional.

2. Publish dynamic market notice.

3. Assess applications for membership within a reasonable period.

4. Notify suppliers.

5. Publish dynamic market notice with suppliers that have been added to the market.

6. Publish dynamic market notice (if / when modifications are made including when additional suppliers are added to the market).

7. Publish dynamic market notice when terminating the dynamic market.

40f. Frameworks and dynamic markets: awarding a contract under a dynamic market - Process flow

1. Publish tender notice.

2. Observe minimum 10 days tender period.

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

4. Assess tenders.

5. Issue assessment summaries.

6. Publish contract award notice.

7. Observe any voluntary standstill period - minimum 8 working days.

8. Enter into contract.

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

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

a. publish contract payment notice (where applicable - individual 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)

e. observe any voluntary standstill period (minimum 8 working days) if and when modifications are made

11. Publish contract termination notice.

41. Frameworks and dynamic markets: Decision tree

This learning aid is designed to assist you to determine whether a framework, open framework or dynamic market may be most suitable for your requirements.

Establishing a framework, open framework or dynamic market?

Question 1: What is the current status of the market? If it is stagnant / stable / limited new entrants, go to question 2. Developing / Emerging  / lots of new entrants, go to question 3. Question 2: Do you want to appoint a single supplier? If yes, the outcome should be framework. If no, go to question 3. Question 3: Do you want the flexibility to refresh or add suppliers during the term of the agreement? If no, the outcome should be framework. If yes, go to question 4. Question 4: Do you want to limit the number of suppliers on the agreement? If yes, the outcome should be open framework. If no, go to question 5. Question 5: Do you have the resources and capacity to assess applications from suppliers within a reasonable timeframe at any time throughout the life of the agreement? If yes, the outcome should be dynamic market. If no, the outcome should be open framework.

42a. Tender notice fields: Frameworks

Tender notices: frameworks

Regulation 20 - (1) This regulation sets out other information which must be included in a tender notice for the award of a framework published under section 21(1) of the PA 2023.

(2) Depending on the procedure adopted for the framework, the required information is:

The open procedure information is:

(a) where the open procedure is being used, the same information referred to in regulation 18(2)

The initial fields are the same as the fields set out in regulation 18(2). Tender notice for the open procedure.

The competitive flexible procedure information is:

(b) where the competitive flexible procedure is being used, the same information referred to in regulation 19(2)

The initial fields are the same as the fields set out in regulation 19(2). Tender notice for the competitive flexibe procedure.

(c) details of the selection process to be applied on the award of contracts

Detail the process of how contracts will be awarded under the framework.

(d) the term of the framework

Confirm the framework term.

(e) the contracting authorities entitled to award contracts in accordance with the framework (whether by listing the names of those authorities or by describing categories of authorities)

Confirm the contracting authorities that may use the framework to award call off contracts. Either list by name, category or insert link to the list.

(f) whether the framework is being awarded under an open framework

Confirm if the framework is an open framework.

(g) where the framework is being awarded under an open framework, the unique identifier for the procurement of the last framework awarded under the open framework (unless no framework has previously been awarded under the open framework)

This is where you insert the first open framework unique identifier.

(h) where the framework is being awarded under an open framework, the estimated end date of the open framework

Confirm the ‘estimated’ end date for the open framework.

(i) whether the intention is to award the framework to:

  • i. a single supplier

  • ii. a maximum number of suppliers, or

  • iii. an unlimited number of suppliers

Define here whether you intended to appoint a single, multiple or unlimited amount of suppliers, considering lots where appropriate, to the proposed framework.

(j) where the intention is to award the framework to a maximum number of suppliers, the maximum number of suppliers

Define any maximum number of supliers, if any, you will apply to the framework, considering lots where applicable.

(k) whether the framework provides for the charging of fees in accordance with section 45(7), and, if so, the fixed percentage of the estimated value of any contract awarded to the supplier in accordance with the framework and any other information needed in order to understand how fees will be charged

Confirm and define the fee mechanism.

(l) where the framework is being awarded by reference to suppliers’ membership of a dynamic market:

i. the unique identifier for the dynamic market against which the public contract is being awarded

ii. a statement that the tender notice is for the award of a public contract which is to be awarded by reference to suppliers’ membership of a dynamic market, and

iii. where the public contract is being awarded under an appropriate part of a dynamic market:

  • a. the title of the part, and

  • b. the distinct number given to the part by the person who established the dynamic market

If awarding a framework under a dynamic market:

i. the unique identifier for the dynamic market

ii. a statement that the tender notice is for the award of a public contract which is to be awarded by reference to suppliers’ membership of a dynamic market, and

iii. if awarding under part of a dynamic market:

  • a. the title of the part, and

  • b. the distinct number given to the part by the person who established the dynamic market

(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.

42b. Dynamic markets (except qualifying utilities dynamic markets) tender notice

Tender notices: dynamic markets except qualifying utilities dynamic markets

Regulation 21 - (1) This regulation sets out other information which must be included in a tender notice for the award of a public contract by reference to suppliers’ membership of a dynamic market published under sections 21(1)(b) (competitive flexible procedure) and 34(1) (excluding non-members from competitive procurement) of the PA 2023.

(2) The information is:

(a) the same information referred to in regulation 19(2) The initial fields are the same as the fields set out in regulation 19(2) tender notice for the competitive flexibe procedure.

(2) The further information is:

(b) the unique identifier for the dynamic market against which the public contract is being awarded

This is the unique identifier related to the dynamic market you are using to award your contract.

(c) a statement that the tender notice is for the award of a public contract which is to be awarded by reference to suppliers’ membership of a dynamic market, and

Note this doesn’t restrict a new supplier making an application to join the DM and being accepted before the deadline for tenders from members.

(d) where the public contract is being awarded to suppliers that are members of an appropriate part of a dynamic market:

  • i. the title of the part, and

  • ii. the distinct number given to the part by the person who established the dynamic market

This is where, when dynamic markets consist of parts, such as for different goods or services, you would define the title of the part, as defined by the dynamic market and the distinct number assigned to that particular part of the dynamic market.

(3) Nothing in this regulation prevents a contracting authority from providing 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.

(4) This regulation does not apply to a tender notice for the award of a framework by reference to suppliers’ membership of a dynamic market (see instead regulation 20)

Use the tender notice in regulation 20 in respect of a framework being award by reference to the supplier membership of a dynamic market.

(5) This regulation does not apply to a tender notice of the type mentioned in regulation 22(1)

22(1) of the 2024 regulations relates to qualifying utilities dynamic market notices. This tender notice is not used for the award of a public contract by reference to a utilities dynamic market established under a qualifying utilities dynamic market notice.

42c. Tender notice for qualifying utilities dynamic markets

Tender notices: qualifying utilities dynamic market notices

Regulation 22 - (1) This regulation sets out other information which must be included in a tender notice for the award of a public contract by reference to a utilities dynamic market established under a qualifying utilities dynamic market notice provided under section 40(2) or (3) 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 unique identifier for the dynamic market against which the public contract is being awarded

This is the unique identifier related to the qualifying utilities dynamic market you are using to award your contract.

(c) 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 (b) the unique identifier for the dynamic market against which the public contract is being awarded

(d) where the public contract is for goods, services or works which the contracting authority expects will be needed after the expiry of the contract, an estimate, if possible, of the date when any subsequent tender notice will be provided

This relates to the further or subsequent contract situation and what might happen after the conclusion of the prospective term arrangement. The detail might state, for example, to be advised within 6-months of the termination of the proposed contract or, if concluded, by way of the respective contract termination notice.

(e) 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

(f) whether an electronic auction will be used

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.

(g) how requests to participate may be submitted and the date by when they must be submitted

This field requires the deadline for requests to participate and usually confirms any instructions if using eSenders. Other details like attachments or other returned information can be defined here.

(h) 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.

(i) whether the contracting authority proposes to rely on one of the following minimum tendering periods mentioned in the table in section 54(4) of the PA 2023 and, if so, which one:

  • i. entry 1 (contract being awarded is a light touch contract)

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

  • iii. 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)

  • iv. entry 5 (state of urgency)

This section of the notice refers to s.54(4) of PA 2023, and the approach to correctly determining the minimum amount of time a tendering period. If the minimum tendering period is to be used, the circumstance should be stated.

(j) a description of the kinds of goods, services or works which will be supplied, and

This is where you provide a general description of the goods and/or services and works that should be within the scope or type of the definitions of the same defined within the details provided when establishing a dynamic market.

(k) the estimated amount of goods, services or works which will be supplied

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

(3) Where a contracting authority has already published information mentioned in paragraph (2) in the qualifying utilities dynamic market notice to which the tender notice relates in accordance with regulation 25(2)(i)(ii), the contracting authority is not required to provide that information in the tender notice

This section confirms that a tender notice for the award of a public contract by reference to a utilities dynamic market established under a qualifying utilities dynamic market notice where the details required in “(2) Information required” has already been provided in the qualifying utilities dynamic market notice, there is no need to provide that detail in this tender notice.

(4) In paragraph (2), “electronic auction” has the meaning given by regulation 18(3)

“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.

(5) Nothing in this regulation prevents a contracting authority from providing other information 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.

42d. Dynamic market notice

Dynamic market notices (including qualifying utilities dynamic market notices)

Regulation 25 - (1) Paragraph (2) sets out other information which must be included in a dynamic market notice published under section 39(2) of the PA 2023 (dynamic market notices: intention to establish a dynamic market).

(2) The information is:

(a) the name of the person establishing the dynamic market

The person or contracting authority establishing the dynamic.

(b) where there are two or more persons who are jointly establishing the dynamic market:

  • i. the name of the lead person, and

  • ii. the name of each of the other persons

The persons or contracting authorities establishing the dynamic.

(c) a contact postal address and email address for the person establishing the dynamic market or where there are two or more persons jointly establishing the market that information for each such person

The person or contracting authority address.

(d) the unique identifier for the person establishing the dynamic market or where there are two or more persons jointly establishing the market the unique identifier for each such person

The person or contracting authority unique identifier as issued by the central digital platform.

(e) the name of any person (“A”) establishing the dynamic market on behalf of another person and:

  • i. A’s contact postal address and email address

  • ii. A’s unique identifier, and

  • iii. a summary of A’s role in relation to the dynamic market

The “person (“A”) could include the name and details of any agents, consultants and such.

(f) the name, contact postal address and email address of any person who can be contacted in the event of an enquiry about the dynamic market

The details would normally be those of the office that deals with membership and other enquiries relating to the general administration of the respective dynamic market.

(g) the title of the dynamic market

Insert the title name that will be used to refer to this particular dynamic market.

(h) the unique identifier for the dynamic market

Will be issued during creation of the first notice in relation to the dynamic market on the central digital platform.

(i) in the case of a qualifying utilities dynamic market notice:

  • i. a statement that only members of the market, or part of the market, will be notified of a future intention to award a contract by reference to suppliers’ membership of the market, or part of the market, and provided with a tender notice in accordance with section 40(1) and (2) of the PA 2023, and

  • ii. as much of the information as would be published in any tender notice published in accordance with regulation 21(2) that is available when the qualifying utilities dynamic market notice is published

Only applies to qualifying utilities dynamic markets.

(j) how documents relating to the dynamic market may be obtained

Where and how will documents relating to the dynamic market be stored and shared.

(k) how an application to join the dynamic market may be made

Detail how suppliers can make an application to join the dynamic market.

(l) whether the dynamic market is mainly for the supply of goods, services or works

Although the word “mainly” is used, this could be a combination of those goods, services or works.

(m) a description of the kinds of goods, services or works to which the dynamic market relates, given in such detail that a reader of the dynamic market notice can determine if they wish to apply to join the dynamic market, or appropriate part of the market

This content should be detailed enough so that a supplier can make a reasonably informed decision whether to make an application to join the dynamic market.

(n) the relevant CPV codes

Define the CPV codes for the works, goods or services avaiable under the dynamic market.

(o) the conditions for membership of the dynamic market, or part of the market, set in accordance with section 36 of the PA 2023

Define the conditions of membership.

(p) a description of the methods that will be used to verify whether a supplier meets those conditions, including any different conditions for different kinds of goods, services or works

Define the assessment methodology for determining whether a supplier meets the conditions for membership.

(q) whether the dynamic market may be used to award a public contract for which the United Kingdom has obligations under the GPA

Confirm if the dynamic market can be used to award a contract covered under the Agreement on Government Procurement.

(r) from the date when the Comprehensive and Progressive Agreement for Trans-Pacific Partnership enters into force for the United Kingdom, whether the dynamic market is one for which the United Kingdom has obligations under that agreement

Refer to trade obligations under this agreement at https://commonslibrary.parliament.uk/research-briefings/cbp-9121/

(s) whether the dynamic market may be used to award 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 any special regime contracts can be awarded under the dynamic market.

(t) where the dynamic market is divided into appropriate parts for the purpose of excluding suppliers that are not members of an appropriate part:

  • i. the title of each part

  • ii. a description of each part including any relevant CPV codes, and

  • iii. the distinct number given to each part by the person establishing the dynamic market

This provides the description and CPV codes of any part, as well as the title of those parts, including the unique identifier along so that suppliers can make the appropriate application to be considered members for the purpose of supplying the part(s).

(u) information enabling a reader to identify which contracting authorities will, or may apply to, use the dynamic market (either by reference to a list of authorities or a list describing categories of authorities)

Confirm the contracting authorities that may use dynamic market to award contracts. Either list by name, category or insert link to the list.

(v) the geographical classification, where it is possible to describe this

Geographic areas, such as post-codes or regional boundaries.

(w) in the case of a dynamic market with an estimated date when it will cease to operate:

  • i. the estimated date when the dynamic market will be established, and

  • ii. the estimated date when the dynamic market will cease to operate

Estimated dates when the dynamic market will be open and closed.

(x) in the case of a dynamic market without an estimated date when it will cease to operate:

  • i. the estimated date when the dynamic market will be established, and

  • ii. a statement that the dynamic market is an open-ended market

Alternate to (w) above, this is where the start of a dynamic market can be defined but the approach is “open-ended”, without a pre-determined end date.

(y) in the case of a dynamic market which is not a utilities dynamic market, whether the dynamic market provides for the charging of fees in accordance with section 38(1) of the PA 2023 and if so:

  • i. the fixed percentage to be applied to the estimated value of any public contract awarded to a supplier by reference to the dynamic market, and

  • ii. any other information needed in order to enable suppliers to understand how fees will be charged, and

This applies to all dynamic markets other than utilities where the scale of fee as a fixed % of the estimated value of the proposed contract is defined. Note general membership or access fees are not permitted.

(z) in the case of a utilities dynamic market:

  • i. whether the utilities dynamic market provides for the charging of fees in accordance with section 38(3) of the PA 2023, and

  • ii. if so, information needed in order to enable suppliers to understand how fees will be charged

The alternate to (y) above, for utilities dynamic markets to define membership charges related to accessing and maintaining the membership of the utilities dynamic market.

(3) Paragraph (4) sets out other information which must be included in a dynamic market notice published under section 39(3) of the PA 2023 (establishment of a dynamic market)

Confirms the dynamic market notice must be published once the market is established and the additional detail required for that notice.

(4) The information is:

a. the same information referred to in paragraph (2)(a) to (h)

b. the date on which the dynamic market was established, 26

c. for each supplier that is a member of the dynamic market:

  • i. the supplier’s name

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

  • iii. the unique identifier for the supplier, and

  • iv. whether the supplier is:

  - 1. a small and medium-sized enterprise, or

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

d. where the dynamic market is divided into parts, the part of which each of those suppliers is a member

This detail is completed for each member of the dynamic market, completed upon the award of membership to the supplier at the start (establishment) of the dynamic market.

(5) Paragraph (6) sets out other information which must be included in a dynamic market notice published under section 39(4) of the PA 2023 (modifications to a dynamic market)

Confirms the dynamic market notice must be published if any modifications are made to the dynamic market and the additional detail required for that notice.

(6) The information is:

a. the same information referred to in paragraph (2)(a) to (h)

b. the date from when the modification has effect

c. if a supplier is being admitted to the market, a statement to that effect and: i. their name, contact postal address, email address and unique identifier, and ii. where the dynamic market is divided into parts, the part of which the supplier is a member

d. whether the supplier is:

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

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

e. if a supplier is being removed from the market, a statement to that effect and:

  • i. their name, contact postal address, email address and unique identifier, and

  • ii. where the dynamic market is divided into parts, the part of which the supplier is a member, and

f. a summary of any other modification being made

The detail of any and all modification, which includes the addition of new members to the dynamic market during the lifetime of the dynamic market.

(7) Paragraph (8) sets out other information which must be included in a dynamic market notice published under section 39(5) of the PA 2023 (cessation of a dynamic market)

Confirms the dynamic market notice must be published once the market is closed (ceases to operate) and the additional detail required for that notice.

(8) The information is - (a) the same information referred to in paragraph (2)(a) to (h), and (b) the date when the dynamic market ceased to operate

Includes the date the dynamic market ceases to operate.

(9) Nothing in this regulation prevents a contracting authority from publishing other information that relates to the same procurement in a dynamic market 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 ↩

  3. Or transparency notice if the framework is being established via a direct award. ↩

  4. A framework under an open framework cannot be awarded directly (section 51(10)) ↩

  5. Exemptions apply ↩

  6. Exemptions apply ↩

  7. Exemptions apply ↩

  8. Exemptions apply ↩

  9. Exemptions apply ↩

  10. Exemptions apply – charging of fees to suppliers may only be made in connection to obtaining and maintaining membership of the market for utilities dynamic markets ↩

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