Key questions and answers
Please note that although the information in our our 5 in 25 webinars and FAQs was correct at the date of recording, this is an area of law subject to development and change.
Do check if in doubt as to the latest position - you can email [email protected].
Please note that the responses provided represent the general views of the public procurement team at Mills & Reeve, however they should not be relied on or treated as a substitute for specific advice relevant to a particular scenario/matter. If you require specific legal advice, our procurement team would be happy to discuss this further.
FAQs
The requirements to treat bidders equally and transparently is already there in the Public Contracts Regulations 2015 (PCR) and this continues via section 16 of the Act.
The difference under the Act is the new obligation at section 17 is to publish a Preliminary Market Engagement Notice (PME Notice) whenever the authority carries out preliminary market engagement (unless there are compelling reasons not to do so).
Whether this will lead to increased challenges (presumably on the basis that the preliminary market engagement has given a competitor an unfair advantage?) will presumably depend on the content requirements of the PME Notice.
The PME Notice will need to set out the requirements listed in regulation 17 of the Procurement Regulations 2024, which is essentially “a description of the process by which the contracting authority proposes to engage, or has engaged, with suppliers during the preliminary market engagement.”
The official guidance on preliminary market engagement suggests that “the notice can be used to share engagement outputs and ensure a wider audience is kept informed about the contracting authority's emerging thinking, therefore supporting the objectives of section 12 and ensuring all suppliers have access to the same information. The notice can also flag additional upcoming engagement opportunities.”
There does not appear to be anything in these requirements that means that the authority must for example, provide in the (public) PME Notice a list of every supplier it has engaged with, discussions had and outcomes arrived at (although of course it may be necessary to share this information with candidates/tenderers in a procurement in order to meet the duties at section 16 and the guidance certainly seems to point to it being best practice to give significant narrative detail in the PME Notice).
It certainly seems possible that increased transparency around PME Notices might lead to increased challenges – it will depend on the level of detail disclosed. It is of course always the case that, in order to bring a challenge, a supplier needs to show not only that there has been a breach, but that this has caused it to suffer or risk suffering a loss. Query if this might be difficult for a supplier to substantiate in relation to an alleged breach at PME stage.
No, this is not related to any of the goods/services/works thresholds – it is a separate standalone requirement in relation to any “public contract” valued at over £5m. Note that a works threshold which is valued at over £5m but still under the works threshold (£5,372,609) is not a “public contract” – and therefore it is not subject to this requirement.
Yes, there is nothing in the Act to say otherwise. Given that the mechanism for commencing (and therefore determining the end date of) the standstill period is the publication of the new Contract Award Notice, it seems likely that a new Contract Award Notice would need to be published (or the original notice updated). It may be that the official guidance expected shortly will address this point.
We await the official guidance, but on our reading, yes, it will still be available. Section 101(1) is the operative provision on automatic suspensions, and this refers to “any applicable standstill period”. In our view this would extend to cover extensions to the standstill period.
Section 51(2) says that the standstill period is “a period of eight working days beginning with the day on which a contract award notice is published”. The publication date of the CAN is therefore day one.
No; this is changing. Under the Act, section 50 makes it mandatory to publish a Contract Award Notice (which itself contains a requirement to state that an award letter/assessment summary has been sent to tenderers) in relation to all “public contracts”. “Public contract” is defined at section 3(2) and includes call-off contracts from frameworks and DPS where these are over the relevant threshold.
“Working day” has a precise meaning under the Act. It means any day which is not (a) a Saturday or a Sunday, or (b) a day which is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.
Yes, in general the notice requirements apply to “public contracts”. An under-threshold contract will not be a “public contract”. However, part 6 of the Act deals with below threshold contracts. If a contract is under threshold but over £12,000 (central government authorities) or £30,000 (all other contracting authorities) then it will be a “notifiable below threshold contract”.
This means that: (a) if the authority chooses to advertise the opportunity, it must publish a Below Threshold Tender Notice; and (b) as soon as reasonably practicable after awarding the contract, it must publish a Below Threshold Contract Details Notice. These requirements mirror the current Contracts Finder requirements under the PCR.
The new notices and transparency regime applies to all “public contracts”. This includes all contracts, framework agreements, and call-off contracts whose value is over the relevant value thresholds. You can find these thresholds here.
As discussed in the question immediately above, a couple of the notice requirements also apply where the contract value is below these thresholds but above £12,000 (central government authorities) or £30,000 (all other contracting authorities).
These notices will be published on the central digital platform.
Details of payments over £30,000 will be published in notice UK8 – Payment Under A Public Contract - in accordance with section 70 of the Act.
Details of Pipelines will be published in notice UK1 – Pipeline Notice - in accordance with section 93 of the Act.
We understand from the recent TPP webinar on implementation that neither notice UK1 nor UK8 will be ready on the Central Digital Platform on 28 October 2024 when the Act comes into force.
Notice UK1 is scheduled for phase 1.5 of the development so that it is available by the time the obligation to publish it crystallises (May 2025).
Notice UK8 is to follow in phase 2 of the development (timings are not yet known).