#FlexibilityMatters: Competitive flexible procedure under the Procurement Act 2023

  • 10/07/2024
  • Written by NOE CPC

Our theme for July is Flexibility Matters. As we move closer to the introduction of the Procurement Act 2023, we are focusing on the new competitive flexible procedure aspect of the regulations.

The competitive flexible procedure is one of two new competitive tendering procedures under the Procurement Act 2023 and gives contracting authorities the flexibility to design and run a process that reaches the best solution through developing their understanding of what is available. The objective of the competitive flexible procedure is to remove some of the existing barriers to procuring new and better solutions.

We sat down with our Head of Procurement Operations Natalie Ledger and Head of Training and Events Caroline Brash to discuss what the new procedure means for customers and suppliers. 

What are the key different between the competitive dialogue procedure and the new competitive flexible procedure?

Under the Public Contracts Regulations 2015 there are currently a number of processes available to public sector procurers including:

  • Open
  • Restricted
  • Competitive Dialogue
  • Competitive Procedure with Negotiation
  • Negotiated Procedure without Notice
  • Innovation Partnership
  • (also, Light Touch Regime)

Under the new Procurement Act 2023, which comes into force from 28th October 2024, the processes have been reduced to:

  • Competitive Flexible Procedure
  • Open
  • Direct Award
  • (also Limited Tendering Procedure - “such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the contract”).

The Competitive Flexible Procedure allows the contracting authority to effectively design the procurement processes according to the particular contract they are procuring. In that sense, and because considerations specific to the particular contract being procured, it’s almost more reminiscent of a procurement under the Light Touch Regime rather than a prescriptive process under the Public Contracts Regulations.

When undertaking a procurement under the Competitive Flexible procedure, then as long as the procurement reflects the Act’s principles of value for money, public good, transparency, integrity, equal treatment, and non-discrimination, whilst also having regard to the 5 national priorities as set out in the National Procurement Policy Statement (NPPS), it can theoretically be designed to whatever the contracting authority deems appropriate to the particular contract being procured. 

What benefits will the competitive flexible procedure offer to customers / suppliers?

The ability to design a process according to the needs of a specific procurement without being bound by rigid defined processes, but it is important to take into account the stipulations above. 

What will the changes from MEAT to MAT mean for procurement organisations?

PCR 2015’s MEAT (most economically advantageous tender) must be identified on the basis of the price (or cost) using a cost-effectiveness approach and may include the best price/quality ratio which must be assessed on the basis of criteria linked to the subject matter of the contract, and means the contracting authority has to decide the relative weightings to apply quality and price.

The Procurement Act 2023 introduces MAT (Most Advantageous Tender). Whilst Contracting Authorities will still be required to use a weighting system to identify the successful bidder where there are multiple criteria, the Act does not refer to price in the context of the award criteria, which implies that contracting authorities may use non-financial criteria when identifying the successful bidder. Although you would expect price to be assessed on each procurement. 

How are NOE CPC supporting our members through the changes in the new Procurement Act?

We will continue with offering Legal Seminars and other relevant training around the Act (to compliment rather than compete with the training offered by the Government Commercial Function), sharing good practice and signposting to pertinent updates as applicable. 

For further information on the competitive flexible procedure and the Procurement Act 2023 click here.

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