Procurement in a Nutshell – Procurement Act 2023: Competitive Tendering Procedures
5th April, 2024
This Nutshell will analyse the new obligations on contracting authorities in relation to the competitive tendering procedures, drawing attention to any key changes from previous procurement legislation which contracting authorities ought to be aware of.
Introduction
On 26th October 2023 the Procurement Bill received Royal Assent and is now expected to come into force in October 2024.
The Act will, in particular, revoke the following:
- Public Contracts Regulations 2015 (PCR)
- Concession Contracts Regulations 2016
- Utilities Contracts Regulations 2016
What’s new?
The Act has introduced two competitive tendering procedures: the Open Procedure and the Competitive Flexible Procedure.
Open Procedure
The Open Procedure is defined at Regulation 20(2)(a) as a single stage tendering procedure without a restriction on who can submit tenders.
Competitive Flexible Procedure
The Competitive Flexible Procedure may do the following (Regulation 20(4)):
- limit the number of participating suppliers
- provide for the refinement of award criteria under Regulation 24.
- not permit the participation of a supplier that did not submit a tender in the first round of tendering or that was excluded in an earlier round
- if the competitive tendering procedure is being awarded by reference to Lots, the procedure may limit the number of Lots in respect of which any one supplier can submit a tender.
A Competitive Flexible Procedure may provide for the exclusion of suppliers –
- by reference to the conditions of participation
- by reference to an intermediate assessment of tenders
- that are not United Kingdom suppliers or Treaty State suppliers
- that intend to sub-contract the performance of all or part of the contract to a supplier that is not a United Kingdom supplier or a Treaty State supplier.
Please note that Treaty States are those countries with whom the UK has entered into a trading relationship. This includes the GPA (under WTO rules) and the trade and cooperation agreement with the EU.
Contracting authorities must ensure that their competitive flexible procedure is a proportionate means of awarding the public contract, having regard to the nature, complexity and cost of the contract. Authorities must also comply with the new objectives, such as treating all suppliers the same. For a detailed analysis of the new objectives under the Act, please click here to view our previous Nutshell.
What’s changed?
The Competitive Dialogue Procedure and the Competitive Procedure with Negotiation, under the PCR, are no longer distinct tendering procedures. However, the ability to both engage in dialogue, and negotiate, with prospective suppliers remains available. Contracting authorities are free to design their competitive flexible procedure as they see fit (bearing in mind the duty of proportionality and the new objectives). The Act seeks to provide contracting authorities with more flexibility with regards to tendering procedures (hence the name), and so a rigid application of either competitive tendering with dialogue or negotiation is no longer necessary.
What does this mean?
Contracting authorities may continue with their preferred tendering procedure, engaging in dialogue and/or negotiations with suppliers, despite the linguistic changes under the Act.
For further information please contact Melanie Pears or Tim Care in our Public Sector Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.
