Two procedures, one design problem: what the Procurement Act guidance on competitive tendering really asks of buyers
The Procurement Act 2023 replaced a familiar list of named procedures with just two options: the open procedure, and the competitive flexible procedure. On paper that reads like simplification. In practice it moves the hard work forward. The old procedures came with their stages, their gates and their timings built in, and a team could follow the shape without designing it. The competitive flexible procedure comes with almost nothing built in, because section 20 defines it as any other competitive tendering procedure the contracting authority considers appropriate. The guidance on competitive tendering procedures is where the discipline lives, and it is worth reading as a design brief rather than a compliance checklist.
Freedom is not the same as flexibility
The temptation with a flexible procedure is to keep options open: publish a notice, see who turns up, work out the stages later. The guidance quietly forecloses that. The tender notice has to state whether the procedure may include negotiation at any stage. It has to carry the conditions of participation and the award criteria. It has to say whether one of the shorter minimum tendering periods in the table in section 54 applies. Section 21(5) then requires the authority to be satisfied, before inviting tenders, that the notice or the associated tender documents give sufficient information.
Add those up and the freedom sits before publication, not after it. An authority that has not decided whether it wants dialogue, how many rounds it will run, where the field narrows and what it will assess at each point cannot write a compliant notice. The organisations getting this right are treating procedure design as a distinct piece of work with its own sign off, usually before the specification is finalised.
Where authorities get caught: refinement and exclusions
Section 24 lets an authority refine award criteria as a staged procedure progresses, and the guidance is precise about the edges. Refinement can mean adding detail to existing criteria, adding related sub criteria, or moving weightings within a published range. Adding new award criteria would not be permissible. That single sentence is where a lot of live procurements will get into trouble, because the natural instinct after a dialogue round is to score the thing you have just learned matters. If it was not in the published criteria or a related sub criterion, it cannot be introduced now.
Exclusions are the other recurring gap. Section 27 requires a check on whether a supplier is excluded or excludable before it is permitted to participate in a competitive flexible procedure, and the guidance expects checks at the start and before assessment of final tenders, with further consideration at key points such as an intermediate assessment of tenders. A single check at the beginning of a six month competition does not meet that expectation. Where a supplier becomes excludable partway through, the authority may exclude it from progressing further, and explanations are owed under section 12(1)(c) and (d).
Both issues share a root cause: the flexible procedure invites iteration, and iteration without a record is indistinguishable from moving the goalposts. Whoever runs the competition needs to be able to show, months later, what changed, when, and why it was within the published envelope.
The planning gains nobody claims
Buried in the notice sequence is a genuine operational reward for planning ahead. If a qualifying planned procurement notice is published at least 40 days and no more than one year before the tender notice, the authority may choose to reduce the tendering period. That is a real saving on the critical path, and it is available only to teams whose pipeline is visible far enough in advance to publish an early notice with something meaningful in it.
The same discipline applies at the other end. Publication of the contract award notice initiates the standstill period, a minimum of eight working days for all public contracts apart from those listed in section 51(3), with the option of applying it voluntarily to the excepted ones. Teams that treat standstill as the moment they finally assemble the evaluation record are already behind. Teams that treat it as a formality on an already complete audit trail get to sign on day nine.
On field size, the guidance offers a sensible anchor without pretending it is a rule: at least five suppliers where the procedure is straightforward with no dialogue or negotiation, at least three where it is complex with extensive dialogue or negotiation, while noting that one size does not fit all. Read that as a prompt to justify your number rather than a number to copy.
What good looks like
A good flexible procedure is one you could draw before you published it: stages named, intermediate assessments placed, reduction points and expected numbers set out, negotiation flagged if it might happen, and the documents for each stage either issued with the notice or clearly signposted. The open procedure remains the right answer for straightforward requirements where any interested party can submit a tender in one stage, and choosing it is not a failure of ambition.
The rest is record keeping that pays for itself: exclusion checks logged at every gate, refinements traced back to published criteria, tendering periods justified against the nature and complexity of the contract, and every document issued to every participant at the same moment. None of that is glamorous, but it is what turns a flexible procedure from a risk into an advantage.
The takeaways
- There are two procedures now: open, and competitive flexible under section 20. The design work moves before publication.
- Refinement under section 24 can add detail, related sub criteria or weightings within a published range, never a new award criterion.
- Check exclusions at the start, at each intermediate assessment and before final assessment, and record each check.
- A qualifying planned procurement notice published at least 40 days and up to one year ahead can shorten the tendering period.
- Standstill is a minimum of eight working days from publication of the contract award notice.
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