Procurement in a Nutshell: Procurement Act 2023 – Modifying a Procurement
9th May, 2024
This Nutshell will analyse the new obligations on contracting authorities in relation to modifying a procurement, drawing attention to any key changes from previous procurement legislation which contracting authorities ought to be aware of.
The Act allows for modifications to be made to the Tender Notice or the associated tender documents, including any requirements of a competitive tendering procedure, conditions of participation or award criteria, in certain circumstances.
In the case of an open tender, changes can be made before the deadline for submitting tenders.
In the case of a competitive flexible procedure, modifications can be made before the deadline for submitting a request to participate or, the deadline for submitting a first or only tender (Section 31(1)). However, changes can be made before the deadline for submitting a tender if the modification is not substantial or the procurement relates to a light touch contract (Section 31(2)).
The Act describes ‘substantial’ as anything that would:
- Permit suppliers that are not participating suppliers to submit a tender; or
- The contracting authority considers that, had the modification been reflected in the tender notice or associated tender documents before the deadline, one or more participating suppliers would not be participating or one or more suppliers that are not participating would participate.
If a contracting authority modifies the terms of a procurement under Section 31 then it must revise and republish the Tender Notice and any associated tender documents affected by the modifications. If a non-substantial modification is made under Section 31(2) then contracting authorities must also notify each participating supplier of the change.
What’s changed?
The ability to modify a procurement is not explicitly provided for in the PCR and so Section 31 is a key addition introduced by the Act.
What does this mean?
While there is not an equivalent provision in the PCR to provide for the modification of procurements, it is our view that such modifications are permitted (albeit in very narrow circumstances) so long as they adhere to the principles underpinning the regulations such as proportionality and the equal treatment of suppliers.
As such, it seems that Section 31 has put on a statutory footing the ability to modify procurements which was previously occurring only in practice. Despite this, the Act has provided much needed clarity surrounding the modification of procurements which was absent under the PCR, and it is hoped this will improve flexibility for contracting authorities.
Contracting authorities should also note the additional transparency requirements introduced by the Act, namely the obligation to republish the Tender Notice following a modification, and prepare to adjust to these new administrative burdens.
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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