Frameworks under the Procurement Act 2023: the official guidance, explained

The key facts

• A framework is a contract between a contracting authority and one or more suppliers that provides for the future award of contracts to that supplier or those suppliers, under section 45(2).
• The maximum term is 4 years for most frameworks and 8 years for defence and security frameworks and utilities frameworks, with longer terms only where justified under section 47.
• An open framework is a scheme of frameworks providing for the award of successive frameworks on substantially the same terms, under section 49(1), with a maximum scheme duration of 8 years.
• An open framework must be re opened at least once in the first 3 years and then at least every 5 years, and may be re opened more often.
• Call-off contracts may be awarded without competition only where there is a single supplier on the framework, or where the framework sets out an objective mechanism for supplier selection and the core terms of the call-off.
• Where a competitive selection process is used, assessment must be based only on some or all of the award criteria used when the framework itself was awarded, refined by sub criteria if needed.
• Direct award under sections 41 or 43 cannot be used to award a call-off contract under a framework, and is unnecessary.
• Any framework fee may only be charged to suppliers awarded call-off contracts, as a fixed percentage of the estimated value of the call-off contract, under section 45(7).
• Contract award notices are required for all call-off contracts, except defence and security contracts awarded under a defence and security framework and direct award user choice contracts.
• Assessment summaries and mandatory standstill do not apply to call-off awards, although an authority may provide summaries and run a voluntary standstill.
• A framework cannot be used to award another framework or a concession contract, under section 45(8).

What this guidance is and who it applies to

The guidance explains the rules on frameworks under the Procurement Act 2023, which sit at sections 45 to 49. It is written for contracting authorities that establish frameworks, including centralised procurement authorities and bodies acting as their agents, and for authorities that buy through them. As with the rest of the technical guidance suite, it supports interpretation of the Act rather than replacing it.

The statutory definition is deliberately wide. Under section 45(2) a framework is a contract between a contracting authority and one or more suppliers that provides for the future award of contracts by a contracting authority to the supplier or suppliers. Two things a framework cannot do are set out in section 45(8): it cannot be used to award another framework, and it cannot be used to award a concession contract.

A framework is itself a public contract, so it is awarded through a competitive tendering procedure or, where the grounds are met, by direct award under sections 41 or 43, though direct award is not available for an open framework. Tender notices apply to competitive awards, transparency notices to direct awards, and a contract details notice follows the award of the framework.

Terms, durations and open frameworks

The default maximum term for a framework is 4 years. Defence and security frameworks and utilities frameworks may run for up to 8 years. A longer term is only possible where the nature of the goods, services or works being supplied means a longer term is required, and that has to be justified under section 47. The guidance is clear that extending an existing framework does not escape this test: if an authority amends the term so that the maximum 4 or 8 year term is exceeded, section 47(2) still applies and the extension must be justified under section 47(3).

Open frameworks are the significant new option. Under section 49(1) an open framework is a scheme of frameworks that provides for the award of successive frameworks on substantially the same terms. The scheme may run for a maximum of 8 years in total. The first framework in the scheme may last a maximum of 3 years and must be re opened within those first 3 years, and subsequent frameworks may last a maximum of 5 years with a re opening at least every 5 years. Those are minimums for re opening, not fixed points: the guidance notes that an open framework could, for example, be re opened annually.

When the scheme re opens, how existing suppliers can secure a place depends on whether the number of suppliers is limited. Where the number of suppliers is unlimited, section 49(4) allows an existing supplier to be awarded a place by virtue of its prior award without submitting a new tender, or by re assessment of its earlier tender, or by submitting a new tender. Where the number of suppliers is limited, section 49(5) allows re assessment of the earlier tender or a new tender, but not automatic carry over. The guidance recommends that the authority sets out the procedure for re opening and for awarding successive frameworks in the associated tender documents.

Two further mechanics matter. Section 49(2)(b) requires one framework in the scheme to expire when the next framework is awarded, and section 49(3) allows any call-off award process that has already commenced under the expiring framework to continue after expiry. Section 49(6) caps the term at 4 years from the point at which an open framework becomes a single supplier framework, rather than 8 years from the award of the first framework.

Awarding call-off contracts

There are two routes to a call-off. The first is a competitive selection process, where suppliers on the framework compete. The framework must specify the selection process to be used, although the guidance accepts that the level of detail will vary. The second is award without competition, which is only permitted where there is a single supplier on the framework, or where the framework provides an objective mechanism for supplier selection together with the core terms of the call-off contracts to be awarded. Examples given for an objective mechanism include a taxi rank system where call-offs are awarded on a rotational basis, or a highest ranking system with a limitation on the number or value of call-off contracts awarded to any one supplier. Core terms cannot be amended other than through the modification provisions in section 74.

Where a competitive selection process is used, section 46 sets the boundaries. Assessment must be based only on some or all of the award criteria that were used to assess tenders when the framework was awarded, and those criteria may be refined by adding sub criteria at call-off stage. Under section 46(1) the authority may set conditions of participation requiring suppliers to demonstrate the legal and financial capacity and technical ability to perform the contract, and those conditions must be a proportionate means of achieving their aim. Section 46(7) means an authority is not required to exclude suppliers that do not meet the conditions of participation from taking part, but the supplier ultimately awarded the call-off must satisfy them.

Direct award under sections 41 or 43 cannot be used to award a call-off contract under a framework, and the guidance says it is unnecessary given the routes the framework itself provides. Exclusions still bite at call-off stage: section 45(6) prohibits awarding a call-off to an excluded supplier, and section 48(1) allows removal from the framework by an implied term where a supplier becomes an excludable supplier. The guidance requires an authority to assess supplier status before each call-off award, even though status was assessed when the framework was awarded.

Notices, standstill and below threshold call-offs

Contract award notices are required for all call-off contracts, with two exceptions: defence and security contracts awarded under a defence and security framework, and direct award user choice contracts. Regulation 34 sets additional content for call-off notices, including the unique identifier of the framework procurement, whether the framework is a defence and security framework, the lot number where relevant, whether the contract was awarded through a competitive selection process for frameworks or without further competition, and where there was no competition the justification under section 45(4).

The provisions on assessment summaries and mandatory standstill do not apply to call-off awards, although a contracting authority may choose to provide assessment summaries and to run a voluntary standstill period. The guidance also notes that the requirements in regulation 27(2)(n) or (o) about information on unsuccessful suppliers do not apply to call-off notices.

Below threshold call-offs are permitted. A regulated below threshold contract may be awarded under an above threshold framework, and where the call-off is a notifiable below threshold contract, a contract details notice must be published under regulation 36. The guidance adds that, while not required under the Act, that notice should include information about the framework being used.

Fees are tightly drawn. Under section 45(7) any fee may only be charged to suppliers that are awarded call-off contracts, and it must be a fixed percentage of the estimated value of the call-off contract awarded to that supplier. There is no scope for a charge simply for holding a place on the framework.

Practical application

The framework documents carry more weight under the Act than many teams assume. They must specify the competitive selection process, or the objective mechanism and core terms if call-offs will be awarded without competition, and for an open framework they should set out how the scheme will be re opened and how successive frameworks will be awarded. Any award criteria that a buyer might want to use at call-off stage have to exist at framework award stage, because call-off assessment can only draw on those criteria, refined by sub criteria. A framework that was scoped narrowly at award will constrain every buyer using it for the next four years.

For buying teams, the discipline at call-off is threefold: choose the correct route and be able to point to the framework provision that supports it, re check supplier exclusion status before award even though it was checked at framework stage, and publish a contract award notice with the additional regulation 34 content. Standstill is not mandatory, but on a contested or high value call-off a voluntary standstill and assessment summaries are a cheap way to reduce risk.

Open frameworks need a forward plan of their own. Re opening within the first 3 years and then at least every 5 years, with one framework expiring as the next is awarded, is a schedule that has to be owned and diarised. The single supplier cap in section 49(6) is an easy trap: a scheme that narrows to one supplier is capped at 4 years from that point rather than running to the 8 year scheme maximum.

How eSourcing Data helps

eSourcing Data lets an authority establish and run a framework as a managed asset rather than a document that goes into a folder after award. The framework record holds the award criteria used at framework stage, the specified selection process or objective mechanism, the lots and the supplier list, so a buyer running a call-off starts from what the framework actually permits instead of interpreting it afresh.

At call-off, competitions can be run against the framework criteria with sub criteria added where needed, with conditions of participation applied and evaluation recorded step by step. Supplier status checks before each award, removals under an implied term where a supplier becomes excludable, and the reasons behind an award without competition all sit in the same audit trail, which is exactly the evidence an authority needs if a call-off is questioned.

Notice management covers the tender or transparency notice for the framework itself, the contract details notice on award, and contract award notices for call-offs with the additional framework content, including below threshold call-offs that require a contract details notice. Reporting then gives commercial leads a view of framework usage, spend and expiry dates, which supports open framework re opening schedules and wider pipeline planning.

What to do about it

1. 1Set the framework award criteria wide enough at framework stage, because call-off assessment can only use those criteria refined by sub criteria.
2. 2State in the framework documents whether call-offs will be competed, and if not, set out the objective mechanism and the core terms.
3. 3Check the term against the 4 year default or the 8 year defence, security and utilities maximum, and justify anything longer under section 47.
4. 4For an open framework, diary the re opening within the first 3 years and then at least every 5 years, and watch the 4 year cap if it becomes a single supplier framework.
5. 5Re assess supplier exclusion status before every call-off award, not just at framework award.
6. 6Publish a contract award notice for each call-off with the additional regulation 34 content, including the framework unique identifier and the award route.
7. 7Consider a voluntary standstill and assessment summaries on contested call-offs, since neither is mandatory.
8. 8Confirm any framework fee is charged only to suppliers awarded call-offs, as a fixed percentage of estimated call-off value.