Procurement in a Nutshell: Procurement Act 2023 Guidance – Assessment Summaries
6th September, 2024
This Nutshell will analyse the recently published guidance on 'Assessment Summaries', evaluating the recommend form and content of such feedback and when this must be given to suppliers.
The Procurement Act 2023 is expected to come into force on 28th October 2024.
The Act will, in particular, revoke the following:
- Public Contracts Regulations 2015 (PCR)
- Concession Contracts Regulations 2016
- Utilities Contracts Regulations 2016
What is an ‘Assessment Summary’ and when must they be provided?
An assessment summary must be provided to every supplier who submitted an ‘assessed tender’, following a competitive tendering procedure, to explain why their tender was either successful or unsuccessful. As explained by the guidance, this allows suppliers to understand how the contracting authority has determined the most advantageous tender (MAT) in accordance with the award criteria and assessment methodology set out in the Tender Notice.
Section 50(5) of the Act defines an assessed tender as “a tender which was submitted in respect of the contract and assessed for the purposes of determining the most advantageous tender”. The guidance explains that, for the purposes of a competitive flexible procedure, which may have multiple assessment stages, assessed tenders are only those tenders which reach the final stage. Tenders are not assessed tenders if they were rejected following an earlier assessment against the award criteria.
However, the guidance does make clear that, while there is no obligation under the Act to provide an assessment summary to suppliers who have not submitted an assessed tender, contracting authorities should inform suppliers in writing as soon as reasonably possible that they are not being taken forward in a competitive tendering procedure. It has been recommended that the assessment summary structure is utilised when providing such feedback.
Assessment summaries are not relevant to establishing a dynamic market because when suppliers are admitted to the market this does not create a public contract. However, an assessment summary is required when awarding a contract under a dynamic market as such contracts are awarded under a competitive flexible procedure.
The requirement to provide assessment summaries applies when awarding a framework that is a public contract but it does not apply when awarding a call-off contract as those contracts are awarded in accordance with the terms of the framework.
Required assessment information
The guidance highlights key information which should be included in an assessment summary for both successful and unsuccessful suppliers, such as:
- The title of each criterion and its relative importance (for example, the weighting);
- How each criterion was assessed and the scores available for each criterion;
- The score determined for each award criterion and explain why that score was awarded by making reference to ‘relevant information in the tender’.
The guidance advises that the assessed tender should be recognisable from the information provided, meaning the supplier should be given sufficient information to understand the scores awarded without the contracting authority needing to reference sensitive details of the supplier’s solution.
For unsuccessful suppliers, the guidance states that, in addition to the information detailed above, they should also be provided with information relating to how the MAT scored against the award criteria. Note that the requirement to describe the “characteristics and relative advantages” of the MAT is no longer relevant. Armed with the assessment information, the guidance suggests that than an unsuccessful bidder should be able to deduce for themselves how they compared to the MAT.
Required assessment information under frameworks
When awarding a multi-supplier framework, the guidance notes that there will be more than one MAT. The guidance states that, in these circumstances, the successful suppliers will only need to be provided with the assessment information relevant to their own tender.
When providing unsuccessful suppliers with the assessment information relating to the MAT, there is no requirement for a contracting authority to provide assessment information about all the successful tenders. Instead, the contracting authority should use the lowest scoring successful tender as the relevant MAT. The guidance suggests that this approach is likely to give the unsuccessful suppliers the best indication of the gap between their unsuccessful tenders and what was required to be successful.
Consideration of sensitive information
As previously mentioned, contracting authorities should note that the successful supplier’s assessment summary information will be shared with the unsuccessful suppliers. It is therefore important to consider whether there is sensitive commercial information relating to the MAT that should not be provided to unsuccessful suppliers.
The guidance highlights that Section 94 of the Act permits contracting authorities to withhold information if it is commercially sensitive and there is an overriding public interest in it being withheld. The guidance states that this provision can be relied upon when redacting details about the MAT. However, the guidance does stress that, where information is withheld, the contracting authority should ensure that the information being provided to unsuccessful suppliers against each criterion nonetheless gives a sufficient explanation of the score awarded to the MAT.
Timing
Contracting authorities must provide an assessment summary to each supplier at the same time and before the Contract Award Notice is published.
The guidance explains that the Act does not prescribe any period of time between the provision of the assessment summary and the publication of the Contract Award Notice and so this is at the discretion of the contracting authority.
This time period should be given careful consideration as it is publication of the Contract Award Notice (and not the issue of the Assessment Summary) that triggers the standstill period.
What does this mean?
It is advised that contracting authorities prioritise drafting a clear and consistent structure for assessment summaries so as to reduce the potential for challenges by suppliers during the standstill period. In doing do, contracting authorities should note the key objectives of the Act including the need for transparency and equal treatment.
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.
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