Competitive tendering procedures under the Procurement Act 2023: the official guidance, explained

The key facts

• The Act provides two competitive tendering procedures: the open procedure and the competitive flexible procedure.
• The open procedure is a single stage procedure whereby any interested party can submit a tender.
• The competitive flexible procedure is any other competitive tendering procedure the contracting authority considers appropriate, under section 20, and it may limit the number of suppliers under section 20(4)(a).
• Before inviting tenders, an authority must be satisfied that the tender notice or associated tender documents provide sufficient information, under section 21(5).
• Section 54 sets minimum tendering periods, and the authority must have regard to the nature and complexity of the contract when setting the deadline under section 54(1).
• A qualifying planned procurement notice published at least 40 days and no more than one year before the tender notice can allow a reduced tendering period.
• Section 24 allows refinement of award criteria in a staged procedure, but adding new award criteria would not be permissible.
• Section 27 requires the authority to check whether a supplier is an excluded or excludable supplier before permitting it to participate in a competitive flexible procedure.
• The mandatory standstill period is a minimum of eight working days, triggered by publication of the contract award notice, and applies to all public contracts apart from those listed in section 51(3).

What this guidance is and who it applies to

The guidance is the Cabinet Office technical guidance on competitive tendering procedures under the Procurement Act 2023. It is written for practitioners, set out in numbered paragraphs, and supported by annexes containing flowcharts that illustrate how different shapes of competition can run. It aids interpretation of the Act and should be read alongside the legislation, not in place of it.

It applies to contracting authorities awarding public contracts, including the special regime contracts: concessions, defence and security, light touch and utilities contracts. The exception is the limited set of circumstances in which the Act permits direct award. The Act narrows the menu to two procedures but widens the design space, because one is deliberately open ended.

The two procedures: open and competitive flexible

The open procedure is described in the guidance as a single stage procedure whereby any interested party can submit a tender. There is no pre-selection stage, so associated tender documents must be provided at the same time as the tender notice on the central digital platform to satisfy the sufficiency requirement.

The competitive flexible procedure is defined in section 20 as any other competitive tendering procedure that the contracting authority considers appropriate. It can run in as many stages as the authority wants, and can include dialogue, negotiation, demonstrations or site visits and more than one round of assessment. Section 20(4)(a) allows the authority to limit the number of suppliers taken forward.

The guidance distinguishes two activities that are often treated as one. Dialogue is a discussion between the contracting authority and suppliers about any aspect of the procurement. Negotiation is the discussion between the contracting authority and a supplier with a view to improving the content of tenders. The tender notice must state whether the procedure may include negotiation at any stage, so this is a design decision made before publication. The Sourcing Playbook is signposted for practical material on both.

What the guidance requires: notices, sufficiency and time limits

The tender notice commences the procedure and carries a great deal of information: the technical specification, the conditions of participation to be met, the award criteria, the deadline and method of submission, whether the procedure may include negotiation, and whether one of the shorter minimum tendering periods set out in the table in section 54 applies. Payment terms matter too, because section 68 implies a 30 day term.

Section 21(5) sets the sufficiency test: a contracting authority must be satisfied, before inviting tenders, that the tender notice or associated tender documents provide sufficient information. There is no obligation to produce associated tender documents at all if the notice already carries everything necessary. Where documents are provided they must generally be free of charge and electronic, in line with section 96.

On timing, section 54(1) requires the authority to have regard to factors such as the nature and complexity of the contract when setting the submission date, and the period must be at least the minimum tendering period set out in section 54. Authorities may reduce it where they have published a qualifying planned procurement notice at least 40 days and no more than one year before the tender notice. Conditions of participation must be a proportionate means of ensuring the supplier's relevant capacity or ability, covering legal, financial or technical competence, assessed at the earliest possible point and confirmed before award.

Exclusions, refinement and standstill

Exclusions run through the whole procedure rather than sitting at one checkpoint. Sections 26 to 30 and sections 57 and 58 govern the position, and authorities must consider exclusions before assessing which tender best satisfies the award criteria. Section 27 requires the authority to check whether a supplier is an excluded or excludable supplier before permitting it to participate in a competitive flexible procedure. The guidance asks for checks at the start and before assessment of final tenders, with further consideration at key points such as an intermediate assessment of tenders, and explanations must be given in line with section 12(1)(c) and (d).

An intermediate assessment of tenders is defined by reference to section 20(6) as an assessment of tenders other than final tenders. It lets a flexible procedure reduce the field between rounds, and suppliers should be told as soon as reasonably possible if they are not being taken forward. On numbers the guidance offers a starting point rather than a rule: at least five suppliers where the procedure is straightforward with no dialogue or negotiation, and at least three where it is more complex and will include extensive dialogue or negotiation.

Section 24 allows for the refinement of award criteria in a staged procedure. Refinement could include adding additional detail to existing criteria, adding related sub criteria to existing criteria, or amending criteria weightings within a published range. Adding new award criteria would not be permissible. Publication of the contract award notice then initiates the standstill period, a minimum of eight working days that applies to all public contracts apart from those listed in section 51(3), with the option of applying the same minimum voluntarily to those excepted contracts. Once standstill has ended, the authority may enter into the contract.

Practical application

The design work now happens before publication. Because the tender notice must state whether negotiation may occur, whether a shorter minimum tendering period applies and what the conditions of participation and award criteria are, the shape of the competition has to be settled before going to market.

The notice sequence gives a spine for a project plan: pipeline notice, preliminary market engagement notice and planned procurement notice as optional early steps, the tender notice to commence the procedure, a procurement termination notice if it is abandoned, the contract award notice to trigger standstill, and the contract details notice after award. Private utilities sit outside some of these obligations.

Two habits protect an authority most. Run exclusion checks at every gate and record the outcome. Keep a clear record of any refinement of award criteria, showing it added detail, sub criteria or a weighting within the published range.

How eSourcing Data helps

eSourcing Data is built around the shape the guidance describes. A competition can be configured as a single stage open procedure or as a multi stage competitive flexible procedure, with stages, intermediate assessments and supplier reduction points defined up front, so the process published in the tender notice is the process the system runs.

The platform holds the notice sequence and the documents together. Tender notices and associated tender documents go to all participants electronically at the same time, later stage documents are released as the competition progresses, and every issue, clarification and submission is timestamped. Exclusion checks can be recorded at each gate, and any refinement of award criteria is captured against the published criteria.

Evaluation, supplier management and reporting run off the same data. Scoring is logged with evaluator comments, feedback and exclusion explanations issue from the same place, and pipeline activity is tracked far enough ahead for qualifying planned procurement notices to be published in time to be useful. When standstill starts, the audit trail is already assembled.

What to do about it

1. 1Decide early whether the requirement suits the open procedure or a competitive flexible procedure, and design the stages before drafting the tender notice.
2. 2Check the tender notice covers specification, conditions of participation, award criteria, submission deadline and method, payment terms and whether negotiation may occur.
3. 3Apply the section 21(5) sufficiency test before inviting tenders, and publish associated tender documents with the notice where the open procedure is used.
4. 4Plan the pipeline far enough ahead to publish a qualifying planned procurement notice at least 40 days and no more than one year before the tender notice if a shorter tendering period is wanted.
5. 5Set the tendering period against the section 54 minimums, having regard to the nature and complexity of the contract.
6. 6Run and record exclusion checks at the start, at each intermediate assessment of tenders and before assessment of final tenders.
7. 7Keep refinement of award criteria within detail, related sub criteria or weightings inside the published range, and document each change.
8. 8Build the eight working day mandatory standstill into the programme, and consider a voluntary standstill for contracts listed in section 51(3).