Award of public contracts and procedures 

Competitive award (sections 19-40)

MEAT to MAT and assessment of tenders

Section 19(1) sets out the core obligation to award a contract to the supplier that submits the most advantageous tender (MAT) and confirms that it best satisfies the award criteria in accordance with the published assessment methodology and weightings. The new regime shifts from the existing most economically advantageous tender (MEAT) and will allow contracts to be awarded to the most advantageous tender, widening the possibility of award to contracts that best further general procurement policies, including social value. This flexibility is set within a general requirement to set criteria in a way which is proportionate to the contract.

Government guidance on assessing competitive tenders is available here. 

Competitive tendering procedures

Section 20 creates one concept of a "competitive tendering procedure" - which may be either:

• A single-stage open procedure; or
• Any other competitive procedure that the authority considers appropriate (introducing freedom to design a procedure). This may contain deselection phases and, in a new flexibility, may provide for the refinement of award criteria in accordance with the Act (a competitive flexible procedure).

This represents significant change to  procurement procedures under the old regime and will allow greater flexibility to design more bespoke procedures within a broad framework.

Whatever procedure is adopted, it must be proportionate to the nature, complexity, and cost of the contract (section 20(3)). 

Sections 21(5) and (6) impose an express duty on authorities, when publishing a tender notice, to ensure that details of the requirements are sufficiently clear and specific as to allow suppliers to prepare their tenders.

Government guidance on competitive tendering procedures is available here.

Guidance on time frames is here. 

Conditions of participation (selection criteria)

Section 22 deals with what we currently refer to as selection criteria, and what are referred to in the Act as conditions of participation.

These conditions are aimed at ensuring suppliers have the legal and financial capacity and the technical ability to perform the contract.

Section 22(4) gives the authority to discretion to set the conditions, but these must be proportionate to the cost, nature and complexity of the contract. Note that “economic and financial standing” becomes “legal and financial capacity”, while “technical and professional ability” becomes “technical ability”.

Section 22(3) prevents authorities from requiring the submission of annual accounts or requiring insurances prior to the award of the contract, as part of the conditions of participation.

Section 22(4) prohibits any condition of participation that requires a supplier to have been awarded a particular contract previously, or to have qualifications without accepting equivalents, or that breaks the rules on technical specifications in section 56.

The majority of a supplier's standard selection information will be uploaded to the Supplier Information Service (part of the Central Digital Platform) (instead of via the CCS Standard Selection Questionnaire, as previously).

Government guidance on conditions of participation is available here. 

Award criteria – link to subject matter of the contract

The requirement that the award criteria be linked to the subject matter of the contract is retained generally. Section 23(5) makes it clear that, as now, staff experience and qualifications are linked to the subject matter where this makes a material difference to the quality of provision under the contract.

Government guidance on assessing competitive tenders is available here. 

Refinement of award criteria

Section 24 introduces a useful flexibility to refine award criteria and relative weightings during a procurement, provided that:

• It's not an open procedure
• The ITT document hasn’t been issued
• There are no suppliers who have been excluded from the process who would have been able to progress had the refinement been in place at the time of their exclusion

The procurement documents must have reserved the right to make this refinement, and making these changes triggers an obligation to republish the tender notice/documents.

A refinement isn’t permitted if, had it been made earlier, it would have allowed one or more suppliers (that didn’t progress beyond an earlier round or selection process) to have done so.

Excluding suppliers

New terminology is introduced - excluded suppliers (excluded on a mandatory ground) and excludable suppliers (excludable on a discretionary ground).

Excluded suppliers must be excluded from the procurement, while the authority may exclude excludable suppliers. The mandatory grounds are set out in full in Schedule 6 and the discretionary grounds in Schedule 7.

A supplier can also be excluded and/or excludable if an associated supplier is itself excluded and/or excludable. An associated supplier is a supplier the tenderer is relying on to deliver the contract. The tenderer must be given an opportunity to replace an associated person prior to any exclusion (section 26(3)).

A similar regime applies in relation to sub-contractors (see section 28).

In addition to the mandatory and discretionary grounds set out in schedules 6 and 7, there are extra sections permitting exclusions for improper behaviour (section 30), or where the supplier is a threat to national security (section 29).

Any exclusion triggers a duty on the authority to refer the exclusion to the Procurement Review Unit.

Government guidance on excluding suppliers is available here. 

Modifying a procurement

Section 31 contains a helpful flexibility allowing a contracting authority to modify the terms of a procurement provided the tender deadline hasn’t passed (for an open process) or the request to participate period hasn’t ended (for a competitive flexible procedure).

Any modification of this sort triggers an obligation to re-publish the tender notice.

If that modification isn’t "substantial", a competitive flexible process may be modified ahead of the tender deadline (not only during the participation period). It will not be necessary to republish the tender notice, but all suppliers must be notified. 

"Substantial" modifications to the tender process are those which would have the potential to change the field of suppliers who would or wouldn’t have been interested in taking part. Such substantial modifications to the procedure aren’t permitted. In both cases, consideration must be given to amending timelines and deadlines where appropriate.

Dynamic markets

Sections 34-40 set out the basics for how dynamic markets (the new terms for a dynamic purchasing system) are to be set up and how contracts can be called off from these. It also confirms that a fee may be charged to suppliers award a contract under a dynamic market, which may make this route more attractive for authorities who will be able to cover the costs of administering the system. 

Government guidance on dynamic markets is available here. 

General provision about award and procedures (sections 54-66)

Time limits

Although there is flexibility on a competitive flexible procedure can be designed, section 54 sets out certain minimum time limits for the participation period (the selection stage) and the tendering period (the award stage). 

Please see our Procurement Act 2023 Timescale Tracker for further information, available here [insert link].

The minimum timescales for what we currently refer to as an accelerated restricted process appear to remain unchanged. There are no minimum timescales for light touch contracts but, in setting time limits, regard must be had to the general principles set out in section 54(1). 

Where a qualifying planned procurement notice has been published in advance, there’s flexibility to reduce the tender period to a minimum of 10 days, subject to the general rules on ensuring proportionality of timescales.

Government guidance on setting time limits is available here. 

Abandoning a procurement

Section 55 introduces a new requirement to publish a procurement termination notice in circumstances where a procurement is abandoned.

Technical specifications

The Act takes the same broad position as previous regime around the requirement to accept equivalents. Authorities also need to note the new obligation at section 56 that the specification must be sufficiently developed and clear that suppliers can tender to it, prior to publishing the tender notice. This was implicit in the previous regime, but the Act makes this an express requirement.

Government guidance on Technical Specifications is available here.

Excluding suppliers/debarment

Section 59 requires a contracting authority which has excluded a supplier to give notice to an appropriate authority within 30 days of this exclusion. 

Under section 60, the appropriate authority may then decide to investigate whether the supplier is indeed an excluded supplier (mandatory exclusions) or an excludable supplier (discretionary exclusions). Authorities and suppliers are required to cooperate. 

Section 62 then states that this report is then used by the Secretary of State to determine whether the supplier should be added to a debarment list under section 62 (notice and an explanation must be provided to the supplier). The length of the debarment is decided by the Secretary of State. 

Section 63 allows a supplier to apply to the High Court for an injunction to prevent the Secretary of State adding it to the debarment list until the court has made a ruling on the question. The court, in making that decision, will consider the public interest and the likely impact of the debarment on the supplier (together with any other relevant factors). 

Section 64 states that a supplier may apply to be removed from the debarment list, but the Secretary of State must only consider this if a material change in circumstances is evidenced.

Section 65 gives suppliers a right to appeal to the High Court against either their inclusion on the debarment list or against the length of their debarment.

Government guidance on excluding suppliers is here and and on debarment is here. 

Exclusion for Past performance

This ground is expanded to also include a situation where a supplier has failed to remedy a breach following the authority having exercised a contractual right to require it to do so. This represents a widening of the ground. Poor performance is rarely dealt with via termination/a court order, but, rather contractually as between the parties. These latter measures may now come within scope of this ground. 

Schedule 7(12)(3) sets out this discretionary ground for failure to remedy. This applies where the supplier hasn’t performed the contract to the authority’s satisfaction and has failed to remedy upon being given the opportunity to do so. The challenge for suppliers here is that the ground gives the authority a good deal of discretion and doesn’t carve out situations where the failure to remedy is outside the supplier’s control. That said, the authority will need to act in accordance with the procurement objectives, which will include being proportionate and fair. Where a performance failure is more serious, and hasn’t been remedied, this must be assessed and published within 30 days of the relevant failure (note this does not apply to light touch regime contracts).

Supplier registration system – simplified selection stage

The central digital platform referenced in the guidance comprises an enhanced version of Find a Tender (FTS), providing the new procurement notices, and a new Supplier Information Service (SIS). Access the central digital platform, which will be supported by a single place of registration for both parts of the service, and for both FTS and SIS, using the same account.