Guidance

Module 7: Assessment and award of contracts

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 will provide an overview of changes relating to:

• Award criteria

• Tender assessment, including procurement termination and feeding back to suppliers

• Standstill requirements

• Awarding contracts

It will identify the key changes against the previous regime and set out what contracting authorities must do to be compliant with these changes.

2. Award criteria

A contract can only be awarded to the most advantageous tender (MAT), and the MAT is the tender that both satisfies the contracting authority’s requirements and is the best tender in respect of the award criteria.

Under the PCR 2015, the award criteria were designed to assess the most economically advantageous tender (MEAT), however under the Procurement Act 2023 the tender should be assessed and the contract awarded based on the most advantageous tender (MAT) when undertaking a competitive tendering procedure.

Change: The award of the contract is to be made on the basis of the most advantageous tender (“MAT”) instead of the most economically advantageous tender (“MEAT”)

Benefit: The explicit removal of ‘economic’ in the change from MEAT to MAT makes it clear that the focus for awarding contracts does not have to be the lowest price or that price/cost must always be weighted higher than non-price factors. MAT allows for assessment of the lowest price only, but contracts awarded on the basis of MAT may also be determined on the basis of a wide range of factors - this may include price and quality criteria in addition to wider social and environmental issues where that is decided to be relevant for the best solution.

The change from MEAT to MAT is not in practice significantly changing the way award criteria are set, tenders are assessed or contracts are awarded. It has been changed to highlight and reinforce the message that contracts do not have to be awarded on the basis of the lowest price or that price must always be weighted higher than quality. When determining the best solution and format for award criteria, contracting authorities must have regard to the objectives in section 12 (including delivering value for money) and the priorities set out in the NPPS published under section 13.

MAT opportunities
Freedom to design value for money award criteria based on the optimal whole-life blend of economy, efficiency and effectiveness that achieve the intended outcomes Lowest price still possible where it is value for money. Example When procuring off the shelf/catalogue goods
Quality or other relevant non-price criteria can be significant factors which can encourage innovation and open up the market Example When procuring innovation the contracting authority might consider giving weight to the technical ability of the supplier to modify or add value to their existing products where that is relevant to the subject-matter of the contract.
Flexibility to select the most appropriate award criteria to not only meet the specific requirements but deliver wider benefits based on the nature of the procurement as long as they are not discriminatory (including against international suppliers in certain countries, (“treaty state suppliers”) where duties are owed under international agreements) and relevant to the subject matter of the procurement. Broader impacts, e.g. socio economic benefits is a key way of ensuring wide – reaching and long-term value for money and should be considered where relevant to the subject matter of the contract. Example When procuring a training provider contract, it may be relevant to set award criteria that relate to how suppliers will work with accredited training providers based within commuting distance of the delivery sites. The resulting positive impacts of access to training qualifications increases the sociological and welfare impacts of local communities through improvements in skills and education, employment and wealth for all ages of employees and subcontractors of the supplier. Subsequently, communities benefit in both the short and long term prospects of improved work conditions and opportunities.
The requirement for contracting authorities to have regard to the importance of maximising public benefit ensures they have a clearer focus on social value – which can play to the strengths of SMEs and VCSEs. Example While procuring services such as new community facilities, local events or marketing campaigns for public health services that require local knowledge, community engagement and impact assessments

Setting Award Criteria

Just like the previous regime, there are certain rules that must be followed when setting award criteria. Under the Procurement Act 2023, award criteria must:

1. relate to the subject-matter of the contract,

2. be sufficiently clear, measurable and specific,

3. not break the rules on technical specification (for example, referring to specific trademarks, place of origin, producers where that is not necessary to making its requirements understood)

4. be a proportionate means of assessing tenders, having regard to the nature, complexity and cost of the contract,

5. be accompanied by the “assessment methodology” describing how tenders are to be assessed by reference to the award criteria and, in particular, specify whether failure to meet one or more criteria would disqualify a tender, and

6. if there is more than one criterion, detail their relative importance by (i) weighting each as representing a percentage of the total importance, (ii) ranking them in order of importance, or (iii) describing it in another way.

When developing award criteria, contract authorities must consider the following:

• Procurement objectives: Award criteria must be designed bearing in mind the obligation to have regard to the procurement objectives set out in section 12(1), treat suppliers the same and have regard to SMEs..

• Non-discrimination: award criteria must not discriminate against treaty state suppliers as part of the general non-discrimination obligation (treaty state suppliers are those suppliers from a home country with whom the UK has a trade agreement with and is therefore entitled to the benefits of an international agreement specified in Schedule 9 of the Procurement Act 2023)

• Regard must be given to the National Procurement Policy Statement (NPPS) and, where appropriate, the Wales Procurement Policy Statement (WPPS). For example, what national priorities are relevant to the requirement and how can they be delivered through the contract

• Can the award criteria be finalised now? If not, design the ability to refine the award criteria into the competitive flexible procedure noting the limitations in the Act on what can be refined and when.

• The award criteria should be sufficiently described in the tender notice and/or associated tender documents to allow suppliers to prepare their tenders.

Amending Award Criteria

Change: There is now further clarity around the flexibility for contracting authorities to refine award criteria as part of a competitive flexible procedure, particularly where refining criteria during the process can aid a multi-stage process.

Benefit: The existing uncertainty around amending award criteria has been addressed, to allow contracting authorities to design a competitive flexible procedure which includes the refinement of the award criteria to ensure the best possible outcome.

Award criteria may be refined during the course of a competitive flexible procedure (not an open procedure) if:

1. The tender notice and/or associated tender documents sets out the intention to do so during the procurement process, and

2. The invitation for final tenders has not yet been issued, and

3. The refinement would not have changed which suppliers progressed through an earlier stage or supplementary process if the refinement had been made earlier.

Refinements include:

• adding additional detail to existing criteria,

• adding sub-criteria,

• amending criteria weightings within a pre-existing range.

These refinements allow contracting authorities to deal with changes in circumstances during the procurement process or because, in a multi-stage competitive flexible procedure, the full details of the award criteria which is to be applied at later stages are not fully known at the outset.

To take full advantage of this flexibility, forward planning to ensure the flexibility to refine the award criteria is built into the competitive flexible procedure is essential.

How to build the ability to refine award criteria into a competitive flexible procedure

1. Set out the right/ability or intent to refine the award criteria in the tender notice and/or the associated tender documents

2. Clearly demonstrate the relative importance of each criteria in the tender notice and/or the associated tender documents, even if, for example, the precise weightings are to be finalised later in the procedure

3. Allow time in the competitive flexible procedure timeline to make refinements including any republishing requirements

4. Make sure any refinement would not alter the outcome of any earlier rounds or supplementary processes.

Precisely how you build the ability to refine award criteria will depend on whether or not you know in advance which refinements you will want to make:

Award Criteria weightings

How can the relative importance of each criteria be demonstrated even if the precise weightings are yet to be finalised in the tender notice?

In instances where award criteria will be refined, criteria weightings can be expressed in the form of a range, with an appropriate minimum and maximum values. In setting a range, contracting authorities are still required to indicate the relative importance of each criteria. If contracting authorities are unable to apply weightings to the award criteria, then they must indicate their relative importance by ranking them in order of importance or another way.

Examples

• Express the weightings in the form of a range provided it also indicates the relative importance of the different criterion, for example:

Criteria	%
Technical solution	40% to 60%
Maintenance	26% to 38%
Programme	16% to 25%
Social Value	10% to 15%
Innovation	5% to 8%

• Ranking the criteria in order of importance, for example:

Criteria	Criteria importance
Technical solution	1st
Maintenance	2nd
Programme	3rd
Social Value	4th
Innovation	5th

• describe each criterion’s importance in another way, for example:

Criteria	Criteria importance
Technical solution	High
Maintenance	Medium-High
Programme	Medium
Social Value	Medium-Low
Innovation	Low

The original award criteria must be sufficiently described in the tender notice and/or tender documents to allow suppliers to prepare their tenders, the refinement must not breach any of the other more general requirements in the Procurement Act 2023 or the specific requirements relating to refining award criteria. For example, refining award criteria must not be used to introduce new award criteria (although new sub-criteria may be added provided the other obligations are met).

The tender notice and any associated tender documents affected by award criteria refinement must be amended and republished.

The details should also be provided to all suppliers that are participating in the procurement at the same time.

3. Assessing tenders

This part of the document covers the assessment of tenders in accordance with the assessment methodology and the options available if no suitable tenders are submitted. For information specific to the assessment of Conditions of Participation and the Exclusions process please see Summary Document 6.

Change: The Procurement Act 2023 makes specific references to the assessment methodology, highlighting its role in procurements

Benefit: Having an assessment methodology provides a transparent foundation for the assessment and award process. This ensures suppliers have a clear understanding of the award criteria and how tenders will be assessed by reference to them.

Change: The requirement for the assessment of tenders to be made from the point of view only of the contracting authority has been removed.

Benefit: This encourages contracting authorities to take into account benefits wider than just those affecting the authority (and helps support national priorities).

What is the assessment methodology?

The assessment methodology will describe how tenders are to be assessed in accordance with the award criteria (i.e., how each criterion is assessed by reference to scores and what scores are available to each criterion); it will detail any minimum thresholds that need to be met, and where failure to meet one or more of the award criteria would disqualify a tender.

The assessment methodology is key to the execution of the whole assessment and award process including how any intermediate assessments and supplementary processes will be managed. Ensuring a robust assessment methodology is developed (including stress testing award criteria and weightings) and the process is properly documented, including the justification of the award decision, will ensure an audit trail of the evidence required to stand up to internal and external scrutiny.

In addition to the award criteria, there are four key requirements set out in section 19(3) of the Procurement Act that must be followed when assessing tenders:

1. If a supplier does not satisfy the conditions of participation you must disregard their tender (Refer to summary document 6 for further details of conditions of participation)

2. If a supplier submits a tender which breaches a procedural requirement set out in the tender notice or associated tender documents then you may disregard their tender(Refer to summary document 3 for further details of procedural requirements)

3. If a supplier submits what you consider to be an abnormally low priced tender for the performance requirements of the contract you may disregard their tender (after completing certain steps as described below)

4. If a supplier is not a United Kingdom supplier or treaty state supplier, or intends to sub-contract the performance of all or part of the contract to a supplier that is not a United Kingdom supplier or treaty state supplier you may disregard their tender (Refer to summary document 1 for further details of treaty state suppliers)

Before a contracting authority disregards what it considers to be an abnormally low tender, the supplier must be notified that their price is considered to be abnormally low and they must be given the opportunity to demonstrate that they will be able to perform the contract for the price offered. If the supplier demonstrates to the contracting authority’s satisfaction that they will be able to perform the contract for the price offered, the tender may not be disregarded as abnormally low. If the supplier doesn’t satisfy the contracting authority, the tender may be disregarded by notifying the supplier of the decision. All documentation and correspondence with the supplier that details how the decision was reached must be kept with the other procurement records as part of the record keeping duties.

• Contracting authorities are permitted, but not required, to disregard tenders from suppliers that are not from a country with which the UK has signed a relevant international agreement on procurement or where the supplier intends to subcontract the performance of all or a part of the contract to a subcontractor that is not from such a country. In making a decision to exclude non-UK and non-Treaty State suppliers the contracting authority must consider its other general duties under the Act including the objectives in section 12.

Switching to Direct Award

Change: The Procurement Act 2023 provides clarity on when you may ‘switch’ to direct award following an unsuccessful competitive tendering procedure

Benefit: This will improve understanding and confidence when making difficult decisions following an unsuccessful competitive tendering procedure

Section 43(1) (Switching to direct award) allows contracting authorities to switch to direct award where:

a. the authority has invited suppliers to submit tenders or requests to participate in a competitive tendering procedure, and

b. it has not received any suitable tenders or requests in response (which would include where it had received no tenders or requests at all, or where it had received no suitable tenders or requests), and

c. it considers that award under section 19 is not possible in the circumstances.

Contracting authorities should note that all three limbs of section 43(1) must be met.

What options are available following an unsuccessful competitive tendering procedure?

Firstly, contracting authorities should seek to understand why the competitive tendering procedure was not successful. This will not only help decide how to take forward this particular requirement but could also help inform future procurement strategies.

If no tenders or requests to participate were submitted was this due to:

a. Lack of market interest

Was the procurement in your published pipeline notice? Was any pre-market engagement carried out to gauge interest and prepare the market? What could have been done differently to warm up the market?

b. Lack of market resources

Was the procurement in your published pipeline notice? Was consideration given to the timing of the procurement in regards to other opportunities in that market? Was any pre-market engagement carried out to gauge interest and ready the market? Were the procurement timescales reasonable? What could have been done differently to warm up the market?

c. Lack of clarity of the requirement in the tender notice and/or associated tender documents

Was any pre-market engagement carried out to gauge interest and ready the market? Was the published information as comprehensive as possible? Could the requirement have been simplified and more focused on outcomes?

If tenders or requests to participate were submitted but none of them were suitable, was this because:

a. Tenders were disregarded under section 19 due to:

• (i) Suppliers failing to satisfy the conditions of participation;

• (ii) Tenders being submitted by non United Kingdom or treaty state suppliers or suppliers intending to subcontract with non United Kingdom or treaty state suppliers;

• (iii) Tender prices being abnormally low (and the supplier being unable to demonstrate to the contracting authority’s satisfaction that it will be able to deliver the contract for the price tendered (see section 19(4) and (5));

b. Tenders not satisfying the requirement or the award criteria (this would include, for example, if prices were above any published budget);

c. There being evidence of corruption or collusion;

d. Tenders materially breaching a procedural requirement;

e. A mix of a to d.

Options available following an unsuccessful competitive tendering procedure:

1. Terminate the procedure and start another competitive tendering procedure

Understanding why no suitable tenders or requests to participate were received is important in order to understand the options available to deliver the requirements. There may be fundamental issues, such as the requirement is simply not deliverable or the award criteria were not appropriate. Understanding this may allow contracting authorities to address those areas and undertake a new competitive tendering procedure. It could have been that there was:

• Lack of market interest

• Lack of market resources

• Lack of clarity of the requirement in the tender notice and/or associated tender documents.

If a new competitive tendering procedure is to be commenced, the contracting authority must terminate the unsuccessful procedure and publish a procurement termination notice (see below for more information).

1. Switch to direct award

Provided the conditions in section 43(1) are met, the contracting authority may directly award the contract to a chosen supplier that is not an excluded supplier. Before awarding the contract, the contracting authority must consider whether the supplier is an excludable supplier or whether it submitted an unsuitable tender or request to participate (section 43(6)). A transparency notice must be published before a contract is awarded after switching to a direct award (see summary document 3 for further details on the direct award process).

What is a tender or request that is not suitable?

Section 43 (2) states that a tender or request is not suitable if the contracting authority considers that:

a. it would be disregarded in an assessment of tenders under section 19(3)(a), (b) or (c );

b. it does not satisfy the contracting authority’s requirements or the award criteria when assessed by reference to the assessment methodology and the relative importance of the criteria indicated under section 23(3) (for example it fails to meet any defined quality threshold);

c. there is evidence of corruption or collusion between suppliers or between suppliers and contracting authorities;

d. it materially breaches a procedural requirement in the tender notice or associated tender documents.

Terminating a procurement

Change: The Procurement Act 2023 has a new requirement to give notice if a procurement is discontinued prior to contract award by publishing a procurement termination notice on the central digital platform

Benefit: This ensures public information on live procurements is up to date and may reduce unnecessary questions from suppliers

Contracting authorities have the same broad discretion to terminate a procurement before the award of a contract as they did under PCR 2015. However, if a decision is made to terminate the procurement following publication of a tender notice or a transparency notice and before awarding the contract, a procurement termination notice^{[footnote 1]} must be published. This includes terminating a procurement procedure that was intending to set up a new framework or to award a contract under a dynamic market.

Contracting authorities may also voluntarily decide to issue a procurement termination notice after earlier notices in the procurement process have been published but before publication of the tender or transparency notice, such as after the planned procurement notice or pipeline notice.

The aim of the procurement termination notice is for transparency and accurate data collection and analysis. It will inform the market that a procurement has been terminated and may reduce questions from suppliers. The procurement termination notice must be published as soon as reasonably practicable after the decision to terminate the procurement has been made. However, any suppliers participating or tendering in the process should be notified as soon as possible after the decision has been made to terminate the procurement in order to stop them incurring any unnecessary costs.

Procurement Termination Notice

What information needs to be in the procurement termination notice?

The procurement termination notice must set out:

• the procurement details (i.e., the title of the procurement and the unique identifier for the procurement)

• a statement that the contract authority has decided not to award the contract

• the date the contracting authority decided not to award the contract

Part terminations

When terminating a procurement in part during the tender period, for example, deciding not to proceed with one or more lots but not to cancel the entire procurement, a procurement termination notice would not be required. Whether or not you will be permitted to partially terminate in this way will depend on whether the proposed partial termination is classed as a permitted modification of the terms of a procurement under section 31 of the Act. If it is permitted, the tender notice and any associated tender documents affected by the modification must be updated and republished. If it is not a permitted modification, the whole tender would need to be terminated.

If a decision compliant with the Act is made not to proceed with one or more lots after the tender period (i.e. after tenders have been submitted) a procurement termination notice would also not be required. In this situation the contract award notice would be used to inform the market that those specific lots are not going to be awarded to any supplier. However, any suppliers tendering for the particular lot(s) that are no longer being proceeded with should be directly informed as soon as possible after the decision has been made. This will stop suppliers incurring any unnecessary costs and helps to manage the relationship with the market better.

4. Awarding contracts

This part of the document covers the obligations that follow tender assessment and reaching the award decision, but before entering into a contract. It includes the issuing of assessment summaries, publishing the contract award notice and the standstill requirements.

Assessment summaries

Change: The Procurement Act 2023 requires contracting authorities to issue an assessment summary, which is similar to a ‘standstill letter’, however, the requirements of the assessment summary are less open to interpretation. Before publishing the contract award notice, an assessment summary must be issued to all suppliers that submitted an assessed tender.

Benefit: Assessment summaries will improve the consistency of feedback to suppliers and provide them with sufficient explanation to enable them to understand why they have been awarded particular scores and therefore why they did or did not win the contract.

Change: An assessment summary does not require direct comparisons between the successful and an unsuccessful supplier’s assessed tender in order to indicate the characteristics and relative advantages of the successful tender. This means the justification for the scores awarded as against the award criteria, and recorded as part of the assessment process, should be able to be used directly in the assessment summary.

Benefit: The removal of the direct comparison means the drafting of assessment summaries should be less burdensome for contracting authorities than standstill letters, which will reduce workload. The assessment summary to unsuccessful suppliers will still include a copy of the information provided to the successful supplier. An unsuccessful supplier reading the two sets of information alongside each other, will be able to ascertain the relative advantages.

What is an assessment summary?

An assessment summary sets out the results of the contracting authority’s tender assessment in accordance with the assessment methodology. It sets out how the tender was assessed against the award criteria by reference to scores (including, where an award criterion includes sub-criteria, an explanation of how the tender was assessed by reference to each sub-criterion). Unsuccessful tenderers who have submitted an assessed tender will also receive information about the most advantageous tender submitted in respect of the contract. It is provided, not publicly published, to each supplier that submitted an assessed tender. Assessment summaries must be provided before the contract award notice can be published (and the standstill period commenced). In practice, it is expected that the contract award notice will be published on the same day as the assessment summaries are provided, assuming they are provided electronically.

What is an assessed tender?

An assessed tender is a tender which, has not been disregarded during the procurement process (for example because it did not meet a procedural requirement) and has been assessed for the purposes of determining the most advantageous tender (that is to say, where a multi-stage competitive flexible procedure has been used, the last tender that is assessed to determine to the most advantageous tender).

The assessment summary will provide sufficient detail to suppliers who had their only or final tender assessed for them to understand why they won or did not win the contract. An unsuccessful supplier who has submitted an assessed tender will receive information relating to their own assessed tender as well as information in relation to the most advantageous tender (redacted to remove any commercially sensitive information where appropriate), which will allow them to see the relative advantages of the winning tender by comparing the two.

What information needs to be in an assessment Summary?

Assessment summaries must set out:

• The award criteria and assessment methodology in full or a summary, with an indication of the location of where the full award criteria can be found. If a summary is provided, this should include at least the:

  - Title of each award criterion;

• The relative importance of each criterion;

• The scores given for each award criterion (including sub-criteria where an award criterion includes sub-criteria for assessment)

• The reasons the score was awarded for that criteria by references to relevant information in the tender

• Where the tender was unsuccessful, a further explanation of why the tender was unsuccessful including, where the tender was disqualified under the assessment methodology under section 23(3) of the PA 2023, the reasons for that disqualification

• Any unsuccessful supplier must also be provided with the scores and reasons in respect of the successful (MAT) tender

In addition to the information that must be set out in an assessment summary, contracting authorities may also wish to consider providing more general feedback to an unsuccessful supplier as part of the assessment summary in order to encourage them to participate in future procurement opportunities. For example, generic feedback around how they approached their tender. This is likely to be particularly useful to SMEs or new entrants to the market.

Assessment summaries must be provided to all suppliers due to receive one at the same time.

Assessment summaries are NOT required for^{[footnote 2]}:

• Intermediate tender assessments

• Contracts awarded under Frameworks (unless the framework terms set out a specific requirement to provide an equivalent)

• Below threshold contracts

• Establishing dynamic markets

Although assessment summaries are not legally required in these cases, it is recommended that you consider using the assessment summary structure when providing notification and feedback to suppliers in these cases (and aim to provide the appropriate level of detail for where in the procurement process the supplier was excluded), to ensure you are compliant with the duty to have regard to the procurement objective of sharing information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions.

How can contracting authorities prepare for issuing assessment summaries throughout the procurement process?

1. Set clear and measurable award criteria.

2. Develop a detailed assessment methodology.

3. Consider holding assessor training to step through the assessment methodology, assessment process and expectations regarding best practice, including using language consistent with the award criteria and assessment methodology.

4. Consider providing the assessors with template scoring and rationale forms and explain how they can reduce the need for redacting commercially sensitive information when explaining the scores given.

5. Ensure good record keeping processes are in place.

6. Produce an assessment report at the end of the assessment process to demonstrate that the assessment has been performed properly and to have in one place the supporting evidence to explain the scores given is documented.

Following the steps above will help you have what you need to complete the assessment summaries

Standstill period

Change: The standstill period is now a minimum of eight working days beginning with the day on which the contract award notice is published.

Benefit: Simpler and more straightforward to apply

Change: Where the standstill period applies (whether mandatory or voluntary), the publication of the contract award notice - not the provision of the assessment summaries - starts the clock.

Benefit: Provides transparency to all interested parties as to when the contract can be entered into. The standstill period is when the automatic suspension remedy is available (i.e the date by which they must issue and notify the contracting authority about a claim if they want to protect their chance at gaining the contract - rather than just go after damages).

Just as before, the standstill period is the period between announcing which supplier is to be awarded the contract and actually entering into that contract. It provides unsuccessful suppliers the opportunity to raise any potential claims before the new public contract is entered into.

A contracting authority may not enter into a public contract before the end of any standstill period that has been set out in the contract award notice (required by Regulation 27(2)(s)). The standstill period begins on the day the contract award notice is published. It is prudent to check that the contract award notice has actually been published when calculating the date on which you can enter into the contract to ensure the full standstill period is provided for.

Do I need to observe a standstill period for my contract?

Contracting authorities should plan for a standstill period when finalising procurement timelines. Only a small number of contracts are exempt from requiring a mandatory standstill period and even where these exemptions apply, consideration should be given to observing a voluntary standstill period where time allows as it helps manage the risk of costly and disruptive legal challenges that might be brought following contract award.

Contracts exempt from mandatory standstill requirements are^{[footnote 3]}:

• Direct award under the ground of extreme and unavoidable urgency

• Direct award under the ground to protect life, etc.

• Direct award and switching to direct award by private utilities

• Those awarded under a framework (call off contracts)

• Those awarded under a dynamic market

• Light touch contracts

What are the consequences for failing to observe the standstill period?

If contracting authorities fail to observe the mandatory standstill period or any voluntary standstill period set out in the contract award notice by entering into the contract before the end of the standstill period, they will have breached their statutory duty and would be at risk of a supplier raising a legal claim under Part 9 of the Procurement Act 2023 (remedies). A voluntary standstill period gives contracting authorities a route to manage the risk of set aside and other post contractual remedies, for procurements and contract modifications that do not attract the mandatory standstill period. Further details on remedies can be found in Summary document 8

Contracting authorities should be aware that applying and adhering to a voluntary standstill period can help protect against post contractual set aside remedies, as it gives the ability for suppliers to raise any concerns prior to the signing and commencement of a contract. This avoids contracting authorities ‘paying twice’ for the goods and services themselves as well as compensation for the lost value of the contract to successful challengers. On the assumption that any breach that led to an incorrect award decision would nearly always be identified prior to the contract being signed, if the standstill concludes without challenge, the supplier cannot later assert that the contract should be set aside because it was denied the opportunity for a pre-contractual remedy.

Contract Award Notice

Change: A new additional notice called the contract award notice must be published before entering into a contract^{[footnote 4]}

Benefit: The contract award notice is part of the transparency agenda and provides information of the outcome of the procurement and starts the standstill period

The contract award notice advises the market and the public of the outcome of the procurement process and that a contracting authority intends to enter into a contract.

It sets out which supplier(s) is to be awarded the contract and commences the mandatory (or voluntary) 8 working day standstill period or confirms the end date of a longer standstill period which allows a window for challenges before the contract commences.

A contract award notice is not required for below-threshold contracts or below threshold contracts that are awarded under a framework (regardless of whether the framework itself is above or below threshold).

What information needs to be in the contract award notice?

The contract award notice must set out (amongst other things):

• the contract subject-matter

• the successful supplier(s) details including which lots they have been awarded where applicable

• tendering details as follows:

  - if the contract has a value of £5 million or less, the total number of tenders submitted, the total number of tenders assessed and the total number of tenders submitted by SMEs or VCSEs;

  - if the contract has a value of £5 million or more, the total number of tenders submitted, the name of each unsuccessful supplier and whether any of those suppliers are SMEs or VCSEs.

• the estimated value of the contract and the estimated value of each lot where applicable

• standstill end date

• confirmation that assessment summaries have been provided to each supplier that submitted an assessed tender and the date those were provided

The contract award notice is also how the market and public are notified that specific lot(s) originally identified in the tender notice will not be awarded, (whilst other lots continue to be awarded where the entire procurement has not been cancelled) if this decision has been made after tenders have been submitted. If the contracting authority decides during the tendering period to end the procurement for one or more lots (but not the whole procurement) it must use the tender notice as set out in Section 31 [Modifying a section 19 procurement]. If the entire procurement was to be cancelled then a procurement termination notice must be published.

The contract award notice is published after the assessment summaries are issued to all suppliers who submitted an assessed tender.

5. Entering into a Contract

This part of the document covers the requirements when entering into a contract including publishing the contract details notice^{[footnote 5]}, publishing a copy of the contract (redacted where appropriate), finalising procurement records and contract handover.

Once the standstill period has ended and there have been no formal challenges contracting authorities can enter into the contract. If no mandatory standstill is required and no voluntary standstill period has been applied then contracts can be entered into immediately after publication of the contract award notice.

Contract Details Notice

Change: The previous contract award notice is now called the contract details notice and must be published within 30 days of the contract being entered into (or 120 days in the case of a light touch contract).

Benefit: Confirms the contract has been entered into and, if the contract is valued at £5 million or more (subject to exceptions), includes a copy of the contract (redacted where appropriate) and the agreed key performance indicators

The contract details notice informs all interested parties that the contract has been entered into. It also includes, if the contract is valued at £5 million or more (subject to exceptions), a copy of the contract (redacted where appropriate) and the agreed key performance indicators (if the contracting authority cannot appropriately assess contract performance using KPIs, this must be explained in the contract details notice). See summary document 9 for further details on KPIs.

The contract details notice must be published within 30 days^{[footnote 6]} of the contract being entered into (or 120 days in the case of a light touch contract).

The 30 days publication requirement does not apply to below-threshold procurement as set out in section 87 ‘Regulated below-threshold contract: notices’ which sets out that the publication should be made ‘as soon as reasonably practicable’.

Where the estimated value of the contract is above £5m then a copy of that contract (redacted as appropriate) must be published^{[footnote 7]} within 90 days of the contract being entered into (or 180 days in the case of a light touch contract).

What information needs to be in the contract details notice?

The contract details notice must set out (amongst other things):

• the contract subject-matter

• the successful supplier(s) details

• a description of any option in the contract.

• the estimated value of the contract and the estimated value of the lot where applicable.

Publication of contracts

Change: A copy of the contract, redacted as appropriate, where its total value is £5m or more must be published within 90 days^{[footnote 8]} of the contract being entered into (or 180 days in the case of a light touch contract).

Benefit: Improved transparency around contract clauses and intended implementation.

Where you are required to publish a copy of the contract you should be aware of Section 94 (General exemptions from duties to publish or disclose information) and applying appropriate redactions before publishing.

Redacting Documents

Redaction is where information which is being withheld from publication is separated from disclosable information by removing individual words, sentences, paragraphs, whole parts and / or pages, before a document is published or issued to other parties.

As well as copies of contracts, contracting authorities are required to publish notices and certain additional documents that may be openly accessible to the public (such as contract amendments), and to provide (but not publish) other information to suppliers (including issuing assessment summaries) throughout the procurement and contract lifecycle.

Section 94, ‘general exemptions from duties to publish or disclose information’, of the Act sets out the conditions under which contracting authorities are permitted to not publish or disclose certain data.

Contracting authorities are permitted to withhold information, for example by redacting, where the following circumstances apply to that information:

1. National Security

2. Sensitive Commercial information

National Security

A contracting authority may withhold information where it is satisfied that this is necessary for the purpose of safeguarding national security. Examples may include, but are not limited to:

• Classified information that requires protection from unauthorised access or distribution.

• Details relating to sensitive sites, such as military or intelligence services operations.

• Information relating to critical national infrastructure, where loss or compromise could result in serious economic damage to the UK.

Sensitive Commercial information

Commercially sensitive information is information that is:

• A trade secret (e.g. a formula, device or set of data that is used within a business and gives that business the opportunity to gain advantage over its competitors) or

• Information that would likely prejudice the commercial interests of any person if it were published or disclosed.

Information may only be withheld on commercial sensitivity grounds if the public interest in doing so outweighs the public interest in disclosing it.

These exceptions are modelled on the equivalent exemptions outlined in the Freedom of Information Act (FOI Act) and are designed to be interpreted in the same way. They have been detailed separately because the FOI Act relates to responding to requests for information, whereas the Procurement Act 2023 is about proactive publication.

The type of information that could be reasonably withheld on the ground of commercial sensitivity, if there is an overriding public interest in doing so, include:

• Pricing and how the supplier has determined the price to charge (not the value of the contract itself).

• Intellectual property.

• Profit forecasting and investment plans.

If contracting authorities rely on either of the above grounds to withhold information from being published, they must notify anyone who the information would have been provided to that this is the case, and why. This obligation does not apply if it would be contrary to the interests of national security to make such a notification. This would typically be done through one of the notices: for example, when publishing a contract details notice and associated contract, if one or more of the contract schedules were not included, an explanation of the reasons would be set out in the notice (unless it would be contrary to the interests of national security to do so).

It is important that contracting authorities review any document before it is published, to identify whether it contains any information that needs to be redacted. It is also important that redaction is done in such a way that the redacted information remains confidential and secure:

Redaction “Dos”	Redaction “Don’ts”
Make a duplicate electronic copy of the document, prior to redacting it.	Overwrite an original document without saving a back-up version.
Delete the information to be redacted and insert a statement indicating that the text has been redacted under section 94.	Use the “highlight” function in word processing software to hide the text in black.
Check prior to publication that no redacted text is visible.	Keep multiple unmarked versions of the document, as this may result in error.
Label the redacted version so that the correct document is uploaded to the platform.

Contract handover

The obligations in the Procurement Act 2023 do not end once the contract is signed and published. There are obligations that continue until the contract has been completed or terminated. The contract manager will need to be aware of these ongoing obligations (this might be someone from another team/department). The following is the highlevel list that should be provided to the contract manager to include in their contract management plan, further information can be found in summary document 9: Contract Governance

• The grounds for lawful contract amendments.

• The transparency requirements relating to contract amendments, including the publication of contract change notices and updated contract documents.

• The transparency requirements relating to the publication of supplier performance against the contract’s set key performance indicators.

• The transparency requirements relating to publishing details of individual payments above £30k made under the contract.

• The transparency requirements relating to contract termination and publishing a contract termination notice.

• The transparency requirements relating to publishing the contracting authority’s performance with 30-day payment terms.

Procurement records

As with the requirements of PCR 2015, contracting authorities must keep certain records for each procurement they undertake. These obligations are set out in section 98 and cover:

• any communications with suppliers in relation to the award of or entry into a contract, made before the contract is entered into; and

• documentation that is sufficient to explain a material decision made during the award of or entry into a contract.

A decision is material if the contracting authority is required to publish or provide a notice, document or any other information relating to it, or if the contracting authority is required, by the Act, to make the decision.

These records must be kept for a minimum period of three years following entry into the contract. If a decision is made to award a contract, but it is not entered into, the three years runs from the date of award.

When the decision is made to terminate a procurement without awarding a contract, records are only required to be kept until the day that a procurement termination notice is published.

Documents should be filled/stored carefully to ensure they are retrievable by others if and when required.

These records may be required for any contract disputes, audits or procurement investigations.

49. Award criteria checklist

The award criteria are:

• clear

• measurable

• specific

• not discriminatory (comply with the rules on technical specifications)

• proportionate to the contract

• linked to the subject matter of the contract

• related to the aspects of the specification or required outcomes

• headline detail published in the tender notice with further detail in associated tender documents

• accompanied by details of their relative importance

• accompanied by the assessment methodology

• accompanied by a statement setting out the intent to refine the award criteria (where applicable)

50. Can I refine my award criteria?: Decision tree

51. Refining award criteria: Examples

To be able to make any refinements to the award criteria during a competitive flexible procedure, under section 24 of the act, you:

• must provide for this possibility in the tender notice or associated tender documents and may in any case only refine award criteria before inviting tenders to be assessed under section 19 of the act i.e. before final tenders are invited

• must modify and republish or provide again the tender notice and any associated tender documents affected by the refinements (including the assessment methodology

• may not make a refinement that would, had the refinement been made earlier, have allowed one or more suppliers that did not progress beyond an earlier round or selection process to have done so

• should consider the specific facts before you decide whether or not refinement will be possible in a particular scenario

Example of refinement	Can this refinement be made? The answer will depend on the specific circumstances, in this table are some possible examples
Can you add new criteria not in the original tender notice or associated tender documents?	No, this may change the suppliers who were interested in the opportunity or change the outcome for any suppliers that did not progress beyond an earlier round or the selection process. You can only refine what has already been provided for.
Can you add additional detail to the criteria set out in the original tender notice or associated tender documents?	Yes, as long as this does not change the original intent of the main criteria.
Can you add new sub criteria to those set out in the original tender notice or associated tender documents if it relates to the main criteria?	Yes, as long as they directly relate to the main criteria.
Can you add new sub criteria not mentioned or associated with the main criteria in the tender notice or associated tender documents?	No, this may change the suppliers who were interested in the opportunity or change the suppliers to progress beyond an earlier round or selection process. You can only refine what has already been provided for.
Can you add additional detail to the sub criteria set out in the original tender notice or associated tender documents?	Yes, as long as this does not change the original intent of the sub criteria.
Can you delete one of the main criteria or sub criteria?	No, this may change the suppliers who were interested in the opportunity or change the suppliers to progress beyond an earlier round or selection process.
Can you delete one of the sub criteria?	Yes, if this would not change the suppliers who were interested in the opportunity or change the suppliers to progress beyond an earlier round or selection process.
Can you change/reverse pass fail tests expressed in tender notice or associated tender documents or add a new pass fail tests?	No, this may change the suppliers who were interested in the opportunity or change the suppliers to progress beyond an earlier round or selection process.
Can you change weightings within a pre existing range that was set out in the original tender notice or associated tender documents?	Yes, as long as you stay within the original range (e.g. if a range was set out at 10-30%, an early stage could start at 30% and the final stage could be 10%).
Can you change weightings where there was no pre-existing range set out in the original tender notice or associated tender documents?	Yes, you can refine weightings during the procedure.
Can I refine the main award criteria or sub-criteria if I am using the open procedure?	No, the open procedure is a single-stage tendering procedure therefore you have already invited final tenders.

52. Unsuitable tenders or requests checklist

Each tender or request should be checked before awarding a contract. One or more ticks indicates that the tender or request you have received is an unsuitable tender or request.

Action

1. The supplier has been excluded due to a mandatory or discretionary ground

2. You have concluded that the supplier does not satisfy the conditions of participation

3. You have decided to disregard the tender as it is from a supplier that is not a United Kingdom supplier or treaty state supplier

4. You have decided to disregard the tender as it is from a supplier that intends to sub-contract the performance of all or part of the contract to a supplier that is not a United Kingdom supplier or treaty state supplier

5. You consider the tendered price to be abnormally low for the performance of the contract even after you have notified the supplier and given them a reasonable opportunity to demonstrate that it will be able to perform the contract for the price offered

6. You have concluded that the tender does not satisfy the requirements when assessed by reference to the assessment methodology e.g. do not meet the requirements of the specification, T&Cs, tender deadlines etc

7. You have concluded that the tender does not satisfy the award criteria when assessed by reference to the assessment methodology e.g. where specified failure to meet one or more criteria would disqualify a tender

8. You have concluded that there is evidence of corruption or collusion between one or more suppliers tendering, or between one or more suppliers and the contracting authority

9. You have concluded that the tender materially breaches a procedural requirement set out in the tender notice or associated tender documents (a breach is material if the contracting authority considers that ignoring it would put the tender at an unfair advantage).

If you have invited tenders or requests to participate and have confirmed you have not received any suitable tenders then you may switch to a direct award procedure.

54. Standstill requirement summary table

Procurement type	Mandatory minimum 8 working days standstill period required?	Option for voluntary minimum 8 working days standstill period?
Open and competitive flexible procedure	Yes	N/A
Direct award • in extreme and unavoidable urgency • to protect life • user choice contract	No	Yes
Direct award (other than extreme and unavoidable urgency, to protect life and user choice) (not including private utilities)	Yes	N/A
Switching to a direct award (not including private utilities)	Yes	N/A
Light touch contract	No	Yes
Establishing a new framework (or reopening an open framework)	Yes	N/A
Call off contracts awarded under a framework	No	Yes
Establishing a dynamic market	N/A (no contract to sign)	N/A (no contract to sign)
Contracts awarded under a dynamic market	No	Yes
Below threshold contracts	No	Yes
Exempt contracts	No	Yes
Private utility direct award and private utility switching to direct award	No	Yes
Contract modifications	No	Yes

55. Procurement termination or part termination notice requirements: Decision tree

57. Procurement termination or part termination notice requirements: Decision tree

58. Switching to direct award: Process flow

If you have invited tenders or requests to participate and have confirmed you have not received any suitable tenders then you may switch to a direct award procedure.

1. Confirm that you have not received any suitable tenders and an award under section 19 is not possible

2. Identify supplier(s) (consider undertaking some form of competition where it is appropriate)

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

4. Publish a transparency notice

5. Publish contract award notice

6. Consider a voluntary standstill period - 8 working days

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

8. Manage the contract as normal:

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)

9. Publish contract termination notice

1. Exemptions apply ↩

2. Further exemptions apply ↩

3. Further exemptions apply ↩

4. Exemptions apply ↩

5. Exemptions apply ↩

6. Exemptions apply ↩

7. Exemptions apply ↩

8. Exemptions apply ↩