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
- If a potential contract meets or exceeds a relevant threshold then the contracting authority has to use one of those procedures?
Yes, where the relevant threshold is exceeded (assuming the contract is not an “exempt contract” as set out in schedule 2 to the Act) then the contracting authority will need to either: (1) follow an open, a competitive flexible or a direct award procedure, or (2) use a framework agreement or a dynamic market in order to award a contract.
- In what instance(s) would you be able to modify award criteria?
These can be “refined” in accordance with section 24 of the Act; that is, where the tender notice or procurement documents make provision for this and where the invitation to tender has not yet been released. The Explanatory Notes to the Act give the example of after the negotiation stage in a multistage competitive flexible process. However, refinements are not permitted if, had the refinement been made earlier, a supplier who did not progress through an earlier round of the competition, would have done so. Refinements also cannot be made after the authority has invited final tenders. If criteria are refined, the tender notice and procurement documents must be republished. Therefore, the value of this provision may well be limited in practice.
- Where does calling off a framework sit as one of the procedures? Both under the existing regulations and the new Act?
As currently, calling off from a framework is not amongst the prescribed procedures; a call off contract is made in accordance with the terms of the framework and in accordance with the legislation (that is, Regulation 33 of the PCR 2015 and sections 45 to 49 of the Act). To set up the framework agreement itself (as opposed to calling off under it), one of the standard procedures must be followed. - Can a framework be opened to new suppliers without changing the terms at all?
We assume this question relates to the new concept of “open” frameworks under the Act, set out at section 49. Open frameworks are a scheme of successive framework agreements that allow new suppliers to be added at set times during the framework’s lifetime. - Can we still use a selection questionnaire in an Open Framework?
You would certainly expect to use a selection questionnaire when setting up the open framework, not least as section 45(6) states that the framework may not permit the award of a call off contract to an excluded supplier nor prohibit the authority from requesting additional information from suppliers prior to call off (which we assume is the right to re-test the selection criteria at call-off stage). - Open Framework Agreement – is this similar to a DPS? How would you add suppliers, would it need to be based on the same quality/price/social value tender pack that was used for the initial framework?
It is not identical to a DPS in that it does not allow new suppliers to be added at any time, only at certain, fixed joining points which are set out at the beginning of the life of the framework.Section 49(4) does contain detail around the circumstances where an existing supplier who is already on the open framework can be reappointed to its next iteration, without the need for further competition. However, it does not contain detail on how new suppliers may join the open framework at a joining point, although this is clearly contemplated as being possible (see paragraph 322 of the Explanatory Notes to the Act). This is an area where we are expecting further policy/guidance to clarify the position (expected in February 2024). Given that the open framework can only be reiterated where it is on substantially the same terms as previously, we presume that the same quality/price/social value criteria will need to be used.
- Regarding open frameworks, is framework 3 let within 5 years of framework 2 or 5 years of framework 1?
A open framework must be reopened (1) at least once during the first 3 years after the date of the award of the first framework and (2) at least once every 5 years after the date of the award of the second framework. However, the open framework could be re-opened on a more frequent basis - e.g., annually - if desired. Each framework expires when the successive framework is awarded; the maximum overall term of an open framework is 8 years. - Will we be able to use the flexible framework regime for existing frameworks?
No, the new open framework concept only comes into force with the Act itself; the Act will not apply to any frameworks (or call off contracts under them) that are in existence prior to the implementation date of the Act. See our blog post here for more on the planned transition period. - Regarding a fixed fee for frameworks; will a variable percentage based on value bands will be lawful? I.e., a contract between £0-£1m might attract 2%, £1-£2m, might attract 1.5%, £2m might attract 2.0%? Will this apply to dynamic markets too?
The Act does it clear that a fee may be charged on contracts awarded under frameworks and under dynamic markets but is silent on percentages. We are awaiting further policy/guidance (expected February 2024) to confirm whether there are any parameters around the level of the fee that may be set. - Will standstill notices apply to direct awards under a framework?
Section 51(3)(d) makes it clear that there is no requirement to hold a standstill period in relation to a contract called off from a framework. The obligation to publish a Contract Details Notice does apply to contracts called off from a framework (see section 50(1)). Where the call off is by way of a direct award, our reading is that an assessment summary will not however be required, because there will be no “assessed tender” as defined in this section, because there is no mini-competition in this scenario. A later session on award of contracts and standstill will focus in more detail on Contract Details Notices and assessment summaries.