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
- In relation to transitional application of the Act and the meaning of “commencement” of the procurement, I understand that this also includes a PIN notice, so if a PIN is issued pre-28 October, then you can continue with PCR 2015. However, if you need to start your process earlier than the 28 October and so issue a PIN say in August/September, can you then use the new Act to run your procurement?
The guidance on transition makes it clear that a PIN does not “count” as “commencement” for the purposes of the transitional provisions. On this example, if a PIN was published in August/September but the actual Tender Notice is published on or after 28 October 2024, the contract will be regulated by the new Act.
There is one small exception, which is where a PIN was published and used as an actual call for competition to start the procurement, then the PCR 2015 will continue to apply. This way of using a PIN ceased to be possible from 26 March 2023 though, so this scenario will be a relatively rare one. - I attended a Government Training Course yesterday and they referred to the absolute end date of a DPS to be 27th October 2028. Call-off contracts were not referred to - please could you clarify if this is the case?
This is correct, the guidance on transition states that any dynamic purchasing system established under the PCR 2015 (or equivalent utilities, concessions or defence regulations) must come to an end either (1) as set out when it was established, or (2) by 27th October 2028 (four years after the new regime comes into effect), whichever is earlier.
The guidance also confirms that any call-off contract awarded under such an arrangement will continue until it comes to an end and be managed by the previous legislation (even if the dynamic purchasing system itself has terminated prior to that point).
- Are the Direct Award Justifications in Schedule 5 of the Act specifically aimed at direct awards of contracts or can they also be applied to direct awards under a framework?
Schedule 5 of the Act deals with direct awards of contracts without competition, and not with direct awards under a framework. Direct awards under a framework would need to be made in accordance with the terms of the relevant framework itself and in compliance with section 45(4) of the Act (i.e. the framework already sets out the core terms of the call-off contract and contains an objective mechanism for selection the supplier for direct award). - Can the "objective mechanism for supplier selection" in a framework simply state the contract can be awarded directly to any framework provider?
There would be an argument that allowing the authority total discretion to select a provider for direct award could not amount to an “objective” mechanism; leading to a risk of challenge here. That said, the position is similar under the current procurement regime and many frameworks do permit this kind of direct award already, although it is questionable whether these are strictly speaking compliant with the legislation.
- Does the 4-year framework length apply if you have a framework with lots but only one supplier per lot?
Yes, in relation to any lot under an Open Framework, if at any point a lot has only one supplier, the 4-year limit will then apply in that lot from the point of appointment of that single supplier. - What happens if only one contractor is appointed to a lot - must the lot be collapsed or whole framework (i.e. 4-year max term)?
Each lot can be treated separately, so in any lot where there is only one supplier, the maximum term will be four years from the date of appointment of that supplier in that lot. If other lots have multiple suppliers appointed, the eight-year maximum term will remain available. - For single supplier framework, when does the 4-year max term start?
The 4-year maximum term begins on the date of appointment of the single supplier to the framework.
- Must you have a second refresh/third framework or could you just re-open in year 3 and ride the second framework to the end of the 8 years?
There must be at least three frameworks as a minimum in the scheme due to Regulation 49(2); this states that an open framework must provide for the award of a framework at least once during:
- the period of three years beginning with the day of the award of the first framework in the scheme; and
- each period of five years beginning with the day of the award of the second framework in the scheme.
- Do the duration between each refresh have to be the same as per the example given?
No, the minimum requirement is that you award of a framework at least once during (1) the period of three years beginning with the day of the award of the first framework in the scheme; and (2) each period of five years beginning with the day of the award of the second framework in the scheme. Provided you do this, you can structure the refresh points as you choose. - Do contracts awarded under a Framework need to run for the same duration as the Framework or can it run over as it does now? e.g. if a contract is awarded within the final year of the framework will that contract be able to run for 2 years?
Yes, there is no change here under the new Act. Call-offs are still permitted to extend beyond the life of the framework itself, where this is a reasonable duration for that call-off contract (given the relevant market and contract type) and provided that the authority can justify the call-off contract duration accordingly.
- Will 'carry over' suppliers need to do any 'work' to remain on a framework's subsequent stage, i.e. answer fresh questionnaires, submit fresh documents, etc.?
This will depend on what is set out in the Tender Notice; section 49(4) does state that where the number of suppliers is unlimited it is possible for an existing supplier to be awarded a new framework under the scheme merely on the basis that it has been on a previous framework under the scheme. This suggests that in this case a “carry over” supplier will not have to do any further “work” if the authority opts for this route.However, depending on the scope and nature of the open framework, an authority may want to provide an existing supplier with the opportunity to submit a new tender (as this may prove more competitive than the original offer), or to use the tender it submitted previously on which to base any re-appointment. These routes are also an option where there are unlimited appointments to the framework.
- Can an open framework with unlimited suppliers restrict the number of framework providers in the initial framework but allow additional framework providers to join in later frameworks?
It would be good to have sight of further guidance to see if this point is addressed but on our current reading of section 49, it would seem to be possible for the Tender Notice for each separate framework in the scheme to take a different approach to whether the number of appointees is limited or unlimited. In theory it should be possible for framework 1 to limit numbers to five, for example, but then for the Tender Notice for framework 2 to state that the number of appointees is now unlimited.
- Can you clarify for a Dynamic Market that all call off tenders / "mini comps" must be openly advertised, even though participation is limited to those appointed to the Direct Market?
That is correct; when an authority wishes to call off from a Dynamic Market it must publish a Tender Notice advertising this; there will be a box to tick to show that only members of the Dynamic Market may respond. The Tender Notice alerts the market and allows interested suppliers who are not yet a part of the Dynamic Market to contact the authority to request to be admitted to it, ahead of the call-off. - Under dynamic markets, is there scope to directly award if clearly stated when setting up the dynamic market, or if one is established for light touch services?
No, there is no scope to directly award under a Dynamic Market; section 34(1) makes it clear that a competitive flexible procedure is to be used to call off from the Dynamic Market. There is no particular derogation for light touch regime services in the sections dealing with Dynamic Markets. - Can you award below-threshold contracts via a Dynamic Market; the e-Learning suggested this is not possible?
No, this is not possible. As mentioned in the e-Learning, because the value is below the threshold, it is not possible to restrict who the contract is awarded to by reference to suitability. - Has any guidance been issued on the Light Touch Regime, and if so, whether CPV codes under the LTR would apply for Dynamic Markets?
We have not seen any official guidance as yet on either the light touch regime or on Dynamic Markets. There are no derogations for light touch regime services in the sections of the Act dealing with Dynamic Markets. Our assumption is that the rules on Dynamic Markets apply to light touch regime services in the same was as they do to “ordinary” services, save that the relevant threshold is higher.
Voluntary standstill, contract award and Contract Details Notices for call-offs under a framework or dynamic market. - For a potential 8-year open framework, does a new contract details notice need to be published for each framework within the scheme? Is a procedure is required to allow new suppliers to be admitted to the framework.
Yes, each successive framework in the open framework scheme will require a fresh Contract Details Notice which, in accordance with Regulation 33 Procurement Regulations 2024, will need to also refer to the previous framework in the scheme (unless of course this is the first framework under the open framework scheme).
- Has the official guidance on this matter been published?
Not yet; the latest we know is that all official guidance should be published by the end of June. The government e-Learning is available to public bodies at the www.govcommercialcollege.co.uk site; Module 5 covers frameworks and dynamic markets and is helpful. - Are you able to confirm whether the exemptions for "schools" extends to all types of schools, including multi-academy trusts, 6th Form Colleges, FE Colleges and even Higher Education?
The definition of “school” for the purposes of the Act is set out at section 123. - Regarding a pipeline notice what is this and when is it needed? I take it is based on whole spend for the upcoming year and how long before it is it needed?
Please see our previous webinar on pre-procurement considerations where Pipeline Notices are explained in detail. - I understand the e-learning is only open to practitioners working in the public sector - is this correct?
We understand this to be the case, at least at present, although this may conceivably change.