Getting ready to press the button: what do I actually need to publish with a PA23 tender notice?

Whilst contracting authorities grapple with the new regime under the Procurement Act 2023 (“PA23”), there is one potentially unexpected benefit of the new world.

Under the “old” rules, contracting authorities had a lot of work to do before publishing the equivalent of a PA23 tender notice for a restricted, competitive dialogue or negotiated procedure. Under the Regulation 53 of the Public Contracts Regulations 2015 (“PCR”) the “procurement documents” had to be made available at the same time as the notice was published. “Procurement documents” as defined in the PCR, was a pretty long list, including the relevant specification and the conditions of contract, and understood by most to effectively also include the ITT / ITPD / ITN.

So if you wanted to kick off a procurement under the PCR, you would need to have the ITT, specification and contract ready, as well as the PQQ. In practice, it wasn’t quite that straightforward, in particular for complex procurements. This is because the contract terms might partly depend on the nature of the solution, which would in turn be developed in dialogue, making it impractical to publish the full “procurement documents” at the start of the process. However, it was very clear that you couldn’t just issue a PQQ and little else.

But what about now under the competitive flexible procedure? PA23 (and the accompanying Regulations) provide a long list of what needs to be included in the tender notice itself. Section 21 of PA23 says that “associated tender documents” have to be published together with the tender notice, which are documents which “supplement” the information which must be given in the tender notice.

Section 21 also has additional requirements where a tender is to be submitted, but if the competitive flexible procedure has an initial selection stage, this would not necessarily apply at the point of publishing the tender notice (on the basis that no “tender” is being requested prior to completion of the selection stage).

This therefore means that PA23 is less prescriptive about what needs to be published with the notice, leading contracting authorities to question whether they can revert – in a multi-stage competitive flexible process – to publishing the tender notice and then developing the contract and specification later on.

It is clear that the tender notice must include sufficient information so as to enable suppliers to make an informed decision as to whether they wish to participate, and to enable suppliers to be in a position to respond to the questions in the PSQ, in particular if a non-incumbent.

In practice, this will usually mean that (as a minimum) a high-level specification, and potentially key commercial principles from the planned contract need to be made available with the tender notice. It is also important that the detail which is published at the tender notice stage is accurate and not subject to material changes as any detail is worked up later.

This means contracting authorities do have some more flexibility here (maybe the clue is in the name of the new process), and authorities could potentially leave some of the detail to be developed after the tender notice. But care is needed – any failure to provide enough information with the tender notice could favour an incumbent, or limit market interest in the opportunity, and it can sometimes be difficult to fully verify that a summary is correct without having already done quite a bit of work on the underlying detail.

So the button can be pushed a little earlier, but still with care. A win for PA23!