Procurement in a Nutshell – Procurement Act 2023 – Guidance: Time Limits
29th October, 2024
This Nutshell will analyse the minimum time periods required under the Procurement Act 2023 when conducting a competitive tendering procedure.
You can find the most recent version of the guidance here
Introduction
The Procurement Act 2023 is expected to come into force on 24th February 2025.
The Act will, in particular, revoke the following:
- Public Contracts Regulations 2015 (PCR)
- Concession Contracts Regulations 2016
- Utilities Contracts Regulations 2016
Section 54
The Act introduces mandatory minimum time periods that must be provided for in a competitive tendering procedure. Contracting authorities should note that there are no maximum time periods. The specific periods which apply to a competitive procurement will be discussed below.
When setting any time limits during a procurement, contracting authorities must, where relevant, have regard to the factors outlined in Section 54(1), namely:
- The nature and complexity of the contract being awarded
- The need for site visits, physical inspections and other practical steps
- The need for sub-contracting
- The nature and complexity of any modification of the Tender Notice or any associated tender documents
- The importance of avoiding unnecessary delay.
In addition, the contracting authority must also have regard to the procurement objectives under Section 12 when setting time limits. The guidance notes that being seen to act with integrity, and the requirement to have regard to the fact that small and medium-sized enterprises may face particular barriers to participation, are of particular relevance.
Minimum periods
In a competitive flexible procedure, the tendering period will commence following publication of the Tender Notice. Where there are multiple tendering rounds, tenders will be submitted in response to an invitation to tender sent directly to participating suppliers. In these circumstances, the tendering period starts with the day after a contracting authority invites the submission of tenders as part of a competitive tendering procedure and ends with the day by which tenders must be submitted.
The minimum time periods relevant to these ‘tendering periods’ are set out in the summary table below.
Broadly, the time periods are reduced when a contracting authority considers there is a state of urgency, or if suppliers are already aware of the impending procurement via publication of a Planned Procurement Notice. While a ‘state of urgency’ is not defined in the Act, the guidance state that a decision to reduce the minimum time period must be based on an objective need for urgency and where following the usual time scales would have a genuine adverse effect. As such, it should not be used as a way to ‘catch up’ following delays in the procurement process.
Furthermore, minimum time periods are longer if tenders cannot be submitted electronically or if associate tender documents are not provided at the same time as the Tender Notice.
Table summary
| Circumstance | Minimum period |
| Planned Procurement Notice has been issued | 10 days |
| The contacting authorities considers there is a ‘state of urgency’ | 10 days |
| Award of a contract under a dynamic market | 10 days |
| Tenders are submitted electronically, and the Tender Notice and associated tender documents are provided at the same time | 25 days |
| Tenders are submitted electronically, but the Tender Notice and associated tender documents are not provided at the same time | 30 days |
| Tenders are not submitted electronically, but the Tender Notice and associated tender documents are provided at the same time | 30 days |
| Tenders are not submitted electronically, and the Tender Notice and associated tender documents are provided at the same time | 35 days |
What does this mean?
While the Act prescribes minimum time period to be followed when conducing a competitive procurement, contracting authorities are afforded flexibility to design a procurement beyond these minimum periods. We advise that when doing so, contracting authorities consider the key objectives of the Act, as affirmed by the guidance, and ensure that suppliers are provided sufficient time to prepare their submissions to avoid challenge.
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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