Procurement legal training

Our experienced lawyers provide training on the procurement Regulations to both national and local public sector organisations. This includes the option to undertake training at your premises for a nominal charge.

Call us on 0844 561 6121 or contact any member of our team to find out more details.

Choice of procedure and timeframes

What contract award procedures are available?

There are four types of contract award procedure under the Public Contracts Regulations 2006. There are no restrictions in the legislation on the use of the open and restricted procedures. The competitive dialogue and negotiated procedures can only be used in certain specified circumstances. Our award procedure decision tool has more information on when the procedures might be appropriate.

When should we consider using the open procedure?

The open procedure is suitable for simple procurements where the requirement is straightforward. It is most commonly used in practice for the purchase of goods where the requirement can be clearly defined and the buyer is seeking the least expensive supplier. As there is no "pre-qualification" of bidders, anyone can submit a tender and it is possible that a large number of suppliers will bid.

When should we consider using the restricted procedure?

Consider the restricted procedure where you want to "pre-qualify" suppliers based on their financial standing and technical or professional capability so as to narrow the number permitted to submit bids. Where the restricted procedure is appropriate, you should be able to specify your entire requirement now such that, based on your invitation to tender, bidders will be able to deliver a fully priced bid without the need for any negotiations following receipt of the bid.

When should we consider using the negotiated procedure?

Following the Public Contracts Regulations 2006, the negotiated procedure can only be used in extremely limited circumstances. Typical indicators that the negotiated procedure with publication of a contract notice might be appropriate would be: (1) the contract is for a genuinely unique type of solution; (2) the funding model is untested; and (3) the contracting authority is not aware of any other contracts using a similar model. For particularly complex contracts, the competitive dialogue procedure should generally be used rather than the negotiated procedure. Legal advice should be sought before using the negotiated procedure and a note of why the procedure is being used should be retained.

When should we consider using the competitive dialogue procedure?

The competitive dialogue procedure can only be used in limited circumstances. It may be appropriate where: (1) the contracting authority is unable to produce a complete ITT/requirement specification without discussing its needs in detail with suppliers (but iterative discussions with bidders should allow a detailed solution to be specified); and (2) where the solution is likely to be particularly complex and will require dialogue with bidders to conclude. The competitive dialogue procedure is generally used for complex procurements such as PFI/PPP projects.

What are the timeframes for each procedure?

The overriding requirement is to allow sufficient time for suppliers to prepare appropriate responses, taking account of the subject of the contract, the procedure to be used and the need, for example, for site visits.

The minimum timescales (which may be further reduced in certain circumstances) are set out below and in a table in our timescale tracker:

Open Procedure

Despatch of contract notice to receipt of responses – 52 days

Standstill period* – 10 days (if electronic dispatch of award notification letters)

Available reductions:

52 days: (i) reduction of 7 days available where the contract notice is transmitted by electronic means; (ii) reduction of 5 days available where the contract documents are made available electronically from date of the contract notice (note that guidance from the OGC and the office of the OJEU states that in order to qualify for this reduction, access to the electronic resource (e.g. a website) must be totally unrestricted - this will not be the case if bidders have to register and/or log-in); (iii) reduction of up to 30 days available where detailed information about the contract has been provided in a PIN notice published no more than 12 months and no less than 52 days from despatch of the contract notice.

Restricted Procedure

Despatch of contract notice to expressions of interest – 37 days

Despatch of ITT to receipt of bids – 40 days

Standstill period* – 10 days (if electronic dispatch of award notification letters)

Available reductions:

37 days: (i) reduction of 7 days available where the contract notice is transmitted by electronic means; (ii) reduction to 15 days (10 days where the contract notice is transmitted by electronic means) where a longer time limit is impractical for reasons of urgency.

40 days : (i) reduction to 10 days available where a longer time limit is impractical for reasons of urgency; (ii) reduction of up to 18 days available where detailed information about the contract has been provided in a PIN notice published no more than 12 months and no less than 52 days from despatch of the contract notice; (iii) reduction of 5 days available where the contract documents are made available electronically from date of the contract notice (note that guidance from the OGC and the office of the OJEU states that in order to qualify for this reduction, access to the electronic resource (e.g. a website) must be totally unrestricted - this will not be the case if bidders have to register and/or log-in).

A potential relaxation in the conditions required to be met for use of the accelerated restricted procedure applied from mid-2009 until the end of 2011, taking into account the impact of the changes in the global financial markets. This relaxation was disapplied from 1 January 2012.

Negotiated Procedure with a call for competition

Despatch of contract notice to expressions of interest - 37 days

Despatch of ITN to receipt of responses - sufficient time for those invited to formulate their offers

Standstill period* - 10 days (if electronic dispatch of award notification letters)

Available reductions:

37 days : (i) reduction of 7 days available where the contract notice is transmitted by electronic means; (ii) reduction to 15 days (10 days where the contract notice is transmitted by electronic means) available where a longer time limit is impractical for reasons of urgency.

Competitive Dialogue

Despatch of contract notice to expressions of interest - 37 days

Standstill period* - 10 days (if electronic dispatch of award notification letters)

Available reductions:

37 days : (i) reduction of 7 days available where the contract notice is transmitted by electronic means; (ii) reduction to 15 days (10 days where the contract notice is transmitted by electronic means) where a longer time limit is impractical for reasons of urgency.

*Standstill period

For procurements commenced before 20 December 2009, the standstill period is 10 days. For procurements commenced on or after 20 December 2009, the standstill period increases to up to 15 days if the award notification letters are not sent electronically, and the final day of the standstill period must always be a working day.

Is there any way we can "speed up" any of the procedures if our requirement is urgent?

Reduced timescales are available:

  • Where contract notices are despatched by electronic means in accordance with the prescribed rules, the minimum timescales for responses can be reduced by seven days; and
  • Where the contract documents are readily available on the internet from the date the contract notice is published the minimum timescale for the receipt of tenders can be reduced by five days

The Regulations allow the time limits for a restricted or competitive negotiated procedure to be reduced where urgency makes the normal timescale impractical (the "accelerated procedure"). In such cases, the normal minimum time limit of 37 days to express an interest can be reduced to 15 days. Under the restricted procedure, the minimum time limit for the subsequent receipt of tenders can be reduced from 40 to 10 days. The legislation makes it clear that the accelerated procedure is to be used exceptionally, and the contracting authority must indicate its reasons in the notice to the Official Journal. Generally the reasons for urgency should be external, ie, not resulting from delay by the purchaser. Also, it is important to regard the 10/15-day periods as minimum periods: the contracting authority should allow the maximum time practicable. A useful test is whether the reduction in timeframes makes any material difference to the purchaser. If it does not, the accelerated procedure is unlikely to be justified.

A potential relaxation in the conditions required to be met for use of the accelerated restricted procedure applied from mid-2009 until the end of 2011, taking into account the impact of the changes in the global financial markets. This relaxation was disapplied from 1 January 2012.

Very exceptionally, it is possible to use the negotiated procedure without publication of an OJEU notice on grounds of urgency, but this can only be used in the event of a genuinely unforeseen crisis, eg, procuring emergency shelters following a flood.

Although we know what we want, our organisation does not have the technical expertise to actually formulate this requirement into a specification. What are our options?

You should consider appointing a third party with the necessary expertise to draw up an appropriate specification. If it is not possible to specify the technical requirements now but may be following discussions with suppliers, then it may be possible to use the competitive dialogue procedure which will allow you to conduct iterative discussions with bidders and so to develop the specification needed with their input.

Only one supplier can meet our requirement. Do we have to use a selection process? 

Firstly, test whether this is really right and how you know. If you are only aware of a single supplier but there is no reason why another supplier would not exist, then you should follow the usual contract award procedure. You may receive a bid from a supplier, perhaps overseas, of which you were unaware.

If the supply of the product or service is limited as a result of intellectual property rights (eg, a patented drug; a copyright journal) then you should again test whether there are alternative suppliers – are there multiple resellers for example? Do you need that particular drug or copyright work to meet your output based requirement?

Secondly, test your requirement. For example, if you are looking to procure an extension of software support, it may be more appropriate to procure the supply of the whole system over the relevant term. There may be a supplier out there that can deliver a new and compatible solution for less than the proposed price for the support.

If, after considering the above, you are satisfied that only one supplier exists, consider why there is only one supplier. If it is for technical reasons (which should be construed narrowly as indicated above), artistic reasons (eg, a named artist is being commissioned for a sculpture), or reasons connected with the protection of exclusive rights (eg, the required product is the subject of patent protection), then you should take advice on whether the negotiated procedure without notice is appropriate, and document the basis on which this procedure is thought to be appropriate. If there is only one supplier for any other reason, you will still need to follow a standard selection process under the Regulations.

Procurement helpline

The Procurement Portal aims to provide a "one stop shop" for procurement law queries and advice.

Call 0844 561 6121 to speak to someone in our team or email us with your query.