Five in twenty five: Procurement challenges under the Procurement Act 2023

It will replace PPN 002 for in scope procurements commenced on or after 1 January 2027.

This is not clear yet. PPN 026 says that further guidance will be published in the Autumn on how PPN 026 applies to frameworks and call-offs although it seems that this will say social value should be assessed at both framework and call-off level.

First, PPN 026 is guidance rather than a statutory obligation meaning that not applying it will not be a breach of the Act itself. Using a social value criterion is an award criterion and as such must comply with the rules on setting award criteria, i.e. it must be relevant to the contract and proportionate. PPN 026 acknowledges this and says that it need only be applied if doing so is relevant to the subject matter of the contract, proportionate, and does not create unnecessary burdens for suppliers or barriers to participation, and does not discriminate against treaty state suppliers. This test could be applied to a commodities contract to potentially disapply PPN026 depending on the particular contract.

Police and Crime Commissioners are not listed as a central government authority at schedule 2 to the PR 2024 so at present they would not be caught by mandatory scope of PPN 026 (although recommended as best practice). That could of course change if the PCC adopts it internally as policy.

Broadly, yes. The Council included its urgency justification in the Transparency Notice but not in the Contract Award Notice. The Court accepted that it was arguable that the justification should also have appeared in the Contract Award Notice. If a Contract Award Notice does not contain the required accurate information, section 105(4) of the Act may treat it as though it had not been published, meaning a voluntary standstill period may not prevent a set aside remedy.

No. Section 105(4) does not override the limitation periods in section 106 of the Act. Section 105(4) is concerned with whether a set aside condition is met, providing that a notice may be treated as "not published" if it does not contain accurate information. The time limits for bringing proceedings are governed separately by section 106. The effect of section 105(4) is therefore to help establish a ground for a set aside remedy, not to extend or disapply the statutory limitation period.

If the Contracting Authority is acting as “lead authority” in the sense of being the Framework/Direct Market owner then the obligations around publication of notices related to call offs would sit not with it but with the authorities using it to call-off contracts. However, if it is acting as a lead authority making call offs under a Framework or Direct Market for itself and as lead for other authorities, them the obligations to publish notices will sit with it. This is the kind of issue that could be addressed in whatever agreement exists between the authorities as to how they will work together when calling off and what the limits and role of the Lead Authority will be.

CAN stands for Contract Award Notice. It is the notice published under sections 50 and 51 of the Act to notify the market that a contract has been awarded and, where applicable, to start the standstill period.

Yes. The standstill period is calculated in working days, so relevant bank holidays are excluded when counting the 8-day period. Authorities should be careful to take account of the applicable UK bank holidays, not just those in England, as Scotland and Northern Ireland have some additional bank holidays.

If you are using FTS Direct rather than an e-sourcing provider, your options are currently more limited. UK5 Transparency Notices and UK6 Contract Award Notices cannot currently be edited directly within Find a Tender. If a UK6 has been published in error, the current guidance is to publish a linked UK12 Procurement Termination Notice. Otherwise, any correction mechanism will depend on the functionality available through the platform used to publish the notice. Authorities should therefore check the capabilities of their chosen publication route and ensure appropriate quality assurance before publication.

It is the responsibility of the contracting authority (see Regulation 6 of the Procurement Regulations 2024 (PR2024)) to obtain confirmation that all suppliers are registered on Find a Tender (we assume that registration creates the supplier PPON). There is an obligation to obtain this confirmation before the tender deadline and – if the information is updated – to obtain further confirmation prior to award of the contract. The PR2024 are silent on what happens where a supplier refuses to register and the authority cannot obtain confirmation. One approach might be to inform the supplier that due to the statutory requirements to ensure registration, award cannot proceed unless it is registered. You could also approach Find a Tender or Cabinet Office for advice.

The key point here is that the standstill period cannot be properly commenced until a fully complete and compliant CAN is published; the identity of all the suppliers must be included in the CAN for it to be compliant. There is nothing in the Act to prohibit the above approach, but there is a risk that it causes confusion about the length of the standstill period and query whether it would be preferable to hold off on sending assessment summaries and publishing a CAN until all the PPON numbers have been provided and it is possible to publish a complete and compliant CAN, meaning that there is no need to keep extending the standstill period (which of course increases the length of time available for tenderers to investigate and consider making a challenge).

Each procurement must be evaluated against its published criteria. However, previous performance may be relevant where the Act permits this, and it has been appropriately reflected in the procurement documents as a condition of participation. If so, that supplier is entitled to have its previously (presumably good) performance considered – but not “of right” – only if the conditions of participation in the PSQ expressly take this approach to assessment.

No. Section 19 applies to over threshold procurements under the Act. Below-threshold contracts are subject to the separate regime in Part 6 of the Act.

Not necessarily. The Act does not require a contracting authority to specify the standstill end date in the UK6 Contract Award Notice. The mandatory standstill period is calculated by reference to the publication date of the UK6 and runs for at least eight working days. A notice that records the date assessment summaries were sent and the earliest date the contract may be signed may therefore still be compliant, provided the standstill requirements in section 51 have been met. However, authorities should ensure that the information published allows suppliers to understand when the standstill period expires and when the contract may be entered into. Our view is that e-senders whose notices do expressly state the end date of the standstill period are preferable, as this makes the position clearer.