07/01/2025
The Government has published a template document (“the Template”) and associated guidance (“the Guidance”) to assist contracting authorities with running a procurement in accordance with the new Competitive Flexible Procedure under the Procurement Act 2023 (“the Act”). Matthew Mo and Erin Keating review the Template and consider what actions contracting authorities should take before the Act goes live on 24 February 2025.
Under the Act
The Government intends for the Act to streamline the procurement process and consequently under the Act there will be only three procurement processes available for a covered procurement (not including frameworks and dynamic markets). These are the two competitive tendering processes in the Open Procedure and the Competitive Flexible Procedure together with utilising available grounds to make a Direct Award.
Whilst the Public Contracts Regulations 2015 (“PCR”) provided for a certain degree of flexibility when designing a procurement it was done within the constraints of conditions set for the formal procurement procedures (open, restricted, competitive procedure with negotiation and competitive dialogue).
To quote the Government’s Commercial Functions Transforming Public Procurement Learning Manual (“the Manual”), the new Competitive Flexible Procedure will provide “the opportunity and flexibility to design and undertake a bespoke multi-stage procurement process”. It will be possible to replicate the existing PCR procedure formats under the Competitive Flexible Procedure and well as branching out to create new formats of competition structures.
Additional benefits of the Competitive Flexible Procedure are:
- Greater flexibility to design a multi-stage process that will best fit the objectives of the organisation, local needs and the wider market including SME friendly formats;
- Greater clarity in the ability to modify, refine and adapt the procedure subject to certain conditions being satisfied;
- Greater clarity through the Technical Guidance in being able to incorporate assessment features using site visits, presentations, product demonstrations, and pilots enabling a greater range of supplier engagement approaches; and
- The ability to include negotiations in a competitive tendering exercise is no longer constrained to demonstrating a sufficiently complex requirement.
The Competitive Flexible Procedure is intended to be suitable for a wide range of procurements, including both standard and complex procurements plus niche, innovative, research and development and design competition situations.
The Template
The purpose of the Template is to set out to potential suppliers how a contracting authority will conduct a procurement. It is important to note that the Template should be used as a guide rather than a stringent set of rules.
One of the aims of the Template is to assist contracting authorities with putting in place a structure to support the drafting of supplier facing documentation for procurements run under the Competitive Flexible Procedure. The Template offers the Contracting Authority an opportunity to set out its requirements, the details of preliminary market engagement, the procurement process and timetable plus services levels, service credits and KPIs as well as contract risks and contract terms. The Template can be utilised at various stages of the procurement, with the Guidance listing the invitation to tender, invitation to participate, invitation to submit initial tenders, invitation to negotiate and invitation to submit final tenders as examples of such stages.
Whilst use of the Template is not mandatory, the Government hopes that it will reduce the administrative burden on both contracting authorities and suppliers. This attempt by the Government to create a “one size fits all” document goes some way to explain why the Template is essentially a series of headings of sections, which the contracting authority must complete. The absence of any structure within each section will require the contracting authority to review not only the associated Guidance but also the Technical Guidance, the Procurement Regulations 2024 and of course the Act itself, to ensure that the substance of final document reflects the requirements of both the Act and the contracting authority.
Comment
The Act brings with it significant changes that contracting authorities are having to absorb, digest, understand and implement. The Competitive Flexible Procedure provides a great deal of flexibility to bespoke processes best suited to develop solutions relevant to specific requirements from different sectors and suitable to the types of bidders in those markets.
The Template provides a useful starting point to set out the terms of a competitive tendering process but nevertheless leaves a significant amount of the technical and operation details for contracting authorities to complete as to the design of the stages and how supplementary processes will operate and be evaluated. The contracting authority will also need to ensure that the procedure they have designed is a proportionate means of awarding the public contract, having regards to the nature, complexity and cost of the contract.
The template and guidance are available through the Government’s Procurement Pathway website:
(PA 2023) Competitive flexible procurement template | Procurement Pathway
(PA 2023) Competitive flexible procurement template guidance | Procurement Pathway
Bevan Brittan is experienced in advising contracting authorities in the design of procurement competitions bespoke to their needs in combining our projects and procurement expertise. If you have any questions or would like to get in touch, please contact Matthew Mo or Erin Keating.
Bevan Brittan is supporting clients with transitioning to the new Act through a range of free and paid for resources. More details are available here.
