UK - - Public Procurement Comparative Guide

Compare this Guide in other jurisdictions?

1 Legislative framework

1.1 What legislative and regulatory provisions govern public procurement in your jurisdiction?

Regulated public procurement by ‘contracting authorities' (see question 2.1) in England and Wales is generally governed by the Public Contracts Regulations 2015 (PCR), provided that the specific procurement falls within the scope of the PCR (on which see question 2).

As a result of Brexit, a new public procurement regime has been introduced following the passage of the Procurement Act 2023. The new Procurement Act will replace the PCR, as well as the other sectoral regulations referred to in question 1.2. The new Procurement Act is expected to come into force in October 2024; however, this is subject to further legislative provision.

1.2 Do any special regimes apply in specific sectors (eg, utilities, defence)?

Yes, generally:

the Utilities Contracts Regulations 2016 (UCR) apply where a ‘utility' seeks to procure services, works or supplies pursuant to the carrying out of a ‘utility activity' (as defined in the UCR). ‘Utility activities' include:
- gas and heat;
- electricity;
- water;
- transport services;
- ports and airports;
- postal services; and
- certain oil and gas activities;
the Defence and Security Public Contracts Regulations 2011 (DSPCR) apply where a contracting authority seeks to procure services, works or supplies contracts for certain military/sensitive equipment and/or purposes (as more fully described in the DSPCR); and
the Concession Contracts Regulations 2016 (CCR) apply where a contracting authority or utility procures a ‘concession contract' (as defined in the CCR). A concession contract is generally one under which:
- the concessionaire is entrusted to execute works/provide services, the consideration of which consists of the granting of a right to exploit the works/services (or that right, together with payment); and
- the operating risk is transferred to the concessionaire.

The new Procurement Act will also replace the UCR, the DSPCR and the CCR, consolidating all relevant procurement regimes into a single act of Parliament.

1.3 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have relevance for public procurement?

The main plurilateral international treaty which impacts public procurement regulation in England and Wales is the World Trade Organization's Agreement on Government Procurement (GPA).

The GPA imposes certain obligations on the United Kingdom in respect of procurement regulation and, as a result, has impacted the UK government's ability to implement changes to public procurement under the new Procurement Act.

Public procurement is also routinely governed by multilateral/bilateral trade agreements between the United Kingdom and its trading partners. As a prime example of this, the procurement provisions in the UK-EU Trade and Cooperation Agreement 2021 extend beyond each party's international obligations under the GPA.

2 Scope of application

2.1 What kinds of entities fall within the scope of the public procurement rules in your jurisdiction? Do any exemptions apply?

The Public Contracts Regulations (PCR) apply to ‘contracting authorities'. These include:

the state (including central government authorities);
regional and local authorities;
‘bodies governed by public law'; and
associations of such authorities/bodies.

A ‘body governed by public law' is one that:

is established for the specific purpose of meeting needs in the general interest;
does not have an industrial or commercial character;
has legal personality; and
either:
- is financed for the most part by a contracting authority(ies);
- is subject to management supervision by a contracting authority(ies); or
- has an administrative, managerial or supervisory board, more than half of whose members are appointed by a contracting authority(ies).

The Utilities Contracts Regulations (UCR) apply to ‘utilities'. These include:

contracting authorities for the purposes of the PCR;
‘public undertakings', which are entities over which a contracting authority(ies) may directly/indirectly exercise a dominant influence; and
entities that are neither contracting authorities nor public undertakings but that operate on the basis of special or exclusive rights granted by a competent authority.

This latter category therefore extends the scope of utilities procurement regulation to certain privately owned organisations, mainly operating in monopolistic markets.

Certain exemptions apply under the UCR for utility activities that are directly exposed to competition. In the United Kingdom, these relate to:

the supply of electricity and gas in England, Scotland and Wales;
electricity generation in England, Scotland and Wales; and
exploration for and exploitation of oil and gas in England, Scotland and Wales.

2.2 What kinds of contracts fall within the scope of the public procurement rules in your jurisdiction? Do any exemptions apply?

Generally speaking, any contracts for the purchase of goods, works or services by public authorities or bodies governed by public law will fall within the scope of the public procurement rules subject to minimum financial thresholds, as set out below. Schedule 3 of the PCR also sets out services which are subject to the light-touch regime.

There are also some exemptions, including:

contracts for:
- national security;
- civil defence;
- international cooperation;
- arbitration and conciliation services; and
- certain legal services; and
contracts awarded by certain entities operating in the water, energy, transport and postal services sectors.

2.3 What financial thresholds must be met for specific contracts to fall within the scope of the public procurement rules in your jurisdiction? Do any exemptions apply?

Financial thresholds vary depending on:

the type of contract; and
the procuring body involved.

Historically, the thresholds have been reviewed every two years and adjusted as necessary to ensure consistency with the thresholds set as a GPA level.

Below are the main thresholds for procurements commenced on or after 1 January 2024. All sums are inclusive of value-added tax.

Regulation	Type of contract	Threshold amount
PCR	Supplies and services for central government bodies	£139,688
	Services and supplies for other public sector authorities	£214,904
	Works	£5,372,609
	Light-touch regime services	£663,540
UCR	Supplies and services	£429,809
	Works	£5,372,609
	Light-touch regime services	£884,720
Concession Contracts Regulations	Concessions	£5,372,609
Defence and Security Public Contracts Regulations	Service and supplies	£426,955
Defence and Security Public Contracts Regulations	Works	£5,336,937

The new Procurement Act will streamline the threshold amounts into a single schedule, which may be amended from time to time by secondary legislation. Certain thresholds (including those for light-touch regime services and below threshold contracts) are not subject to the GPA and, as such, may not be reviewed as regularly as the other threshold levels.

2.4 Do any rules apply in regard to contracts which fall below the relevant financial thresholds?

Contracts falling below the relevant financial thresholds may be subject to certain procurement rules. For contracts that are subject to the PCR, certain below-threshold rules apply to contracts that have a value of:

£12,000 or more for central government; or
£30,000 or more for sub-central authorities and National Health Service foundation trusts.

Chapter 8 of the PCR requires contracting authorities to advertise below-threshold contract opportunities on the government's Contracts Finder website, where the contracting authority has advertised the opportunity otherwise. The contracting authority is also prohibited from using a pre-qualification stage where the contract is below the financial threshold.

The remedies regime under the PCR does not apply for below-threshold contracts.

The new Procurement Act largely replicates the existing position. Below-threshold contracts are dealt with in Part 6 of the new Procurement Act. Concessions and utilities contracts are expressly excluded from the rules, together with contracts that would otherwise be exempt from the scope of the new Procurement Act in any case.

2.5 Do any special rules apply to certain types of agreements (eg, concession contracts, framework agreements)?

Concession contracts are subject to the Concession Contracts Regulations (CCR). The CCR set out a more flexible regime than the PCR, although in-scope procurements must still comply with the fundamental principles of:

transparency;
equal treatment; and
non-discrimination.

The PCR includes detailed rules in respect of the use of framework agreements. A ‘framework agreement' is "an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period".

Under the PCR, the maximum period for a framework agreement is four years. Under the UCR, the maximum period is eight years. Framework agreements are ‘closed' systems, meaning that new entrants are unable to join the framework agreement until such a time as it is reprocured.

Framework agreements can be single-supplier or multi-supplier arrangements. Multi-supplier framework can provide for contracts (‘call-off contracts') to be awarded by way of a direct award mechanism or via a mini-competition.

Dynamic purchasing systems (DPSs) are also provided for under the PCR. These are for common used purchases which are generally available on the market. Unlike framework agreements, where contracting authorities can limit the number of suppliers appointed, there is no ability to limit the number of suppliers appointed to a DPS. All suppliers that meet the contracting authority's selection criteria must be admitted to the DPS.

A DPS is an open system, meaning that new entrants can join during its term by submitting a request to participate.

All suppliers on the DPS must be invited to tender for requirements under the DPS. Contracting authorities can divide the DPS into categories, which has the effect of limiting the number of suppliers that must be invited to tender for a specific requirement.

Under the UCR, there is a similar concept, referred to as a ‘qualification system'. A qualification system is effectively a list of pre-qualified suppliers that the utility can invite to participate in a tender process.

The new Procurement Act will largely retain the closed framework but will also introduce the concept of an ‘open framework', which will be accessible at certain points during its term. DPSs are generally retained, although they will be referred to as ‘dynamic markets'.

2.6 Do any special rules apply where the supplier is a foreign entity?

Under the PCR, access to contract award procedures is guaranteed to any economic operator from the European Union or a country that has signed an agreement with the European Union on public procurement. Suppliers from other countries may also participate in contract award procedures, but they are not guaranteed access and may be subject to additional conditions or restrictions.

For some highly sensitive sectors, such as defence, procurement may be restricted to suppliers from the United Kingdom or certain ‘friendly' countries for security reasons. In such circumstances, the procurement documents will state that the competition is restricted.

2.7 Do any anti-avoidance rules apply in your jurisdiction?

Under Regulation 18 of the PCR, the design of a procurement shall not be made with the intention of excluding it from the scope of the procurement rules or of artificially narrowing competition. However, the courts have not criticised contracting authorities for structuring deals (eg, land development opportunities) that fall outside the scope of the ‘onerous obligations' of the procurement rules, suggesting that this anti-avoidance rule is relevant only where there has been some kind of deliberate and artificial avoidance.

Contracting authorities are also prohibited from valuing or subdividing a contract such that the value of the constituent parts of the contract falls below the relevant financial threshold and, therefore, outside the procurement rules.

Under the new Procurement Act, there is no general anti-avoidance rule; however, contracting authorities remain prohibited from valuing or subdividing a contract to fall outside the scope of the rules.

3 Preliminary stages

3.1 What initial engagement with the market will a procuring entity typically undertake in advance of launching a tender procedure? What rules and requirements apply in this regard?

A contracting authority may, but is not obliged to, conduct preliminary market consultations with the market prior to launching a tender procedure. If a contracting authority chooses to conduct preliminary market consultations, it may – but is not obliged to – publish a prior information notice (PIN) on the government's Find a Tender Service website. Publishing a PIN:

ensures that the opportunity reaches the widest market possible; and
helps the contracting authority to demonstrate its compliance with the principles of transparency and equal treatment.

In engaging with the market, Regulation 40 of the Public Contracts Regulations (PCR) provides that any information collected by way of preliminary market consultations can be used to help the contracting authority plan and conduct its procurement procedure, provided that the information does not have the effect of:

distorting competition; or
violating the principles of non-discrimination and transparency.

Potential suppliers that are engaged in preliminary market consultations must not be given any competitive advantage. To ensure this, a contracting authority should consider the principles of:

equal treatment;
transparency; and
preservation of commercial confidentiality.

Records should be kept of any preliminary market consultations undertaken.

Contracting authorities have relative freedom to design preliminary market consultations, which may include using:

questionnaires;
surveys;
individual meetings;
webinars;
conferences; or
workshops.

Under the new Procurement Act, preliminary market engagement remains a voluntary exercise. The relative freedom that contracting authorities have to design preliminary market engagement also remains. However, if a contracting authority decides to undertake preliminary market engagement, it must publish a preliminary market engagement notice (PMEN). The PMEN may be published in advance of, or after, the preliminary market engagement.

3.2 How are invitations to participate in a tender made public in your jurisdiction?

Regulated procurement processes generally commence with the publication of a contract notice on the government's Find a Tender Service website. The contract notice is a key document in any procurement process and sets out the main parameters of the procurement. It includes details such as:

the procuring authority;
a short description of the procurement/requirement;
the estimated total value of the contract;
the estimated contract term;
conditions for participation;
the procurement procedure; and
a deadline for requests to participate.

Regulation 53 of the PCR requires contracting authorities to provide unrestricted and full direct access free of charge to the procurement documents, which include a relevant invitation to participate in the tender process. The procurement documents will be accessible via an internet link provided in the contract notice. Depending on the procurement procedure being followed by the contracting authority (see question 5.1), the initial ‘invitation' document(s) may be, for example:

a selection questionnaire (or similar) (which sets out the basis on which interested parties will be shortlisted to tender); or
an invitation to tender (or similar).

Similar rules apply under:

the Utilities Contracts Regulations; and
the Concession Contracts Regulations.

Contracting authorities usually use a procurement ‘portal' to conduct procurement processes. There are a number of such portals available in the market and each operates differently. The internet link provided in the contract notice for access to the procurement documents is usually one that takes the interested party to the relevant procurement portal.

Under the new Procurement Act, contracting authorities must publish a tender notice for the purposes of commencing a regulated procurement. The tender notice must be accompanied by any ‘associated tender documents', which is a term that is yet to be defined by secondary legislation.

3.3 What criteria determine eligibility to participate in a tender? Do any exemptions apply?

Certain mandatory and discretionary exclusion grounds apply in public procurement processes which impact, or potentially impact, on a supplier's eligibility to participate in a tender. See question 5.6 for further details.

Otherwise, there are no pre-determined eligibility criteria for participation in a tender.

However, contracting authorities may impose their own selection criteria and can set out the minimum requirements that tenderers must meet in order to participate in a procurement exercise. Under Regulation 58 of the PCR, contracting authorities may only impose requirements that fall into the following categories:

suitability to pursue a professional activity;
economic and financial standing; and
technical and professional ability.

The selection criteria used must be relevant and proportionate to the procurement exercise that is being carried out.

Ensuring that a supplier has the necessary economic and financial standing may include requirements such as:

meeting a minimum turnover level;
meeting certain financial ratios; and
having appropriate levels of insurance.

Ensuring that a supplier has the necessary technical and professional ability may include requirements such as:

possessing the necessary human and technical resources and experience to perform the contract to an appropriate quality standard; and
demonstrating suitability by reference to contracts performed in the past.

Under the new Procurement Act, the position generally remains the same and there are still no pre-determined eligibility criteria for participation in a tender. The new Procurement Act enables contracting authorities to provide for ‘conditions of participation' which relate to a supplier's:

legal and financial capacity to perform the contract; and/or
technical ability to perform the contract.

However, a contracting authority will be able to provide conditions only where it is satisfied that they are proportionate.

If a supplier does not satisfy a condition of participation, the contracting authority will be entitled to exclude the supplier from the tender.

3.4 Can the number of potential participants in a tender be restricted in your jurisdiction?

Depending on the procurement procedure being followed by the contracting authority (see question 5.1), the rules on restricting the number of potential participants in a tender differ.

If the open procedure is used, the number of potential participants cannot be restricted. Any interested economic operator may submit a tender in response to a contract notice.

If another procurement procedure is used, any economic operator may submit a request to participate. The contracting authority must indicate in the contract notice or the procurement documents the objective and non-discriminatory criteria or rules that it intends to apply in order to decide:

how potential participants will be restricted; and
how many will be invited to the tender stage.

This is usually done by way of a selection questionnaire which sets out the contracting authority's eligibility criteria (see question 3.3).

The contracting authority must then invite participants to the tender stage by applying the objective and non-discriminatory criteria it has set out. If the number of participants meeting the criteria is below the minimum number set by the contracting authority, it may choose to invite only those participants.

In accordance with Regulation 65 of the PCR, the minimum number of participants that a contracting authority can invite to the tender stage of restricted procedure is five. For the competitive procedure with negotiation, competitive dialogue and innovation partnership, the minimum number of participants is three. In all procedures, the number of participants invited should be sufficient to ensure genuine competition.

Under the new Procurement Act, there is no scope for contracting authorities to limit the number of potential participants in an open procedure; however, they are able to do so when using the competitive flexible procedure. The new Procurement Act does not set a specific limit on the number of potential participants that must be invited.

3.5 Do any special incentives apply to promote the participation of small and medium-sized enterprises in tenders in your jurisdiction?

One of the objectives of the PCR is to encourage the participation of small and medium-sized enterprises (SMEs) in public tenders. To achieve this objective, the regulations include several measures that aim to facilitate the access of SMEs to public contracts, such as:

simplifying the qualification and selection criteria for bidders and requiring contracting authorities to accept self-declarations as preliminary evidence of suitability;
dividing contracts into smaller lots, where appropriate, to allow SMEs to bid for parts of a larger contract or to form consortia with other SMEs;
reducing the minimum annual turnover requirement for bidders to no more than twice the estimated contract value, unless there are specific reasons to justify a higher level; and
providing feedback and debriefing to unsuccessful bidders, and establishing remedies and review procedures for aggrieved bidders.

These measures are intended:

to create a level playing field and make public procurement more accessible and fairer for SMEs; and
to remove some of the barriers that prevent SMEs from competing effectively with larger companies in public tenders.

3.6 What rules and requirements apply in regard to the formulation of technical specifications used as part of a tender procedure?

The PCR includes detailed rules in respect of the formulation of technical specifications. The fundamental rules with regard to the formulation of technical specifications are that they must:

afford equal access of suppliers to the procurement process; and
cannot create unjustified obstacles to competition.

As such, unless justified by the subject matter of the contract, technical specifications should not make reference to:

particular brands, sources or processes which relate to a particular supplier; or
specific IP rights.

Where this is necessary and justified, such references should be accompanied by the wording ‘or equivalent'.

The specific rules on formulating technical specifications include requirements on issues such as:

accessibility for disabled people;
use of performance or functional requirements; and
references to standards.

3.7 Are prospective tenderers which have assisted in the preparation of the tender restricted from participating in the tender procedure? If they are, what requirements are there on procuring entities to manage this?

A prospective tenderer which has assisted in the preparation of the tender is not automatically restricted from participating in the tender procedure. Under Regulation 41 of the PCR, a tenderer that has been involved in the preparation of the procurement procedure can be restricted from participating in the tender only where there are no other means to ensure compliance with the contracting authority's duty to treat economic operators equally.

However, a contracting authority must still take appropriate measures to ensure that the competition is not distorted by the participation of that tenderer – including, for example:

communicating to the other tenderers any relevant information exchanged in the context of, or resulting from, the involvement of the relevant tenderer in the preparation of the procurement procedure; and
fixing adequate time limits for the receipt of tenders.

Under the new Procurement Act, suppliers that have participated in preliminary market engagement – which may include assisting in the preparation of the tender – will not automatically be restricted from participating in the tender process. Contracting authorities are required to treat such a supplier as an ‘excluded' supplier only where:

that supplier's participation in the preliminary market engagement has put it at an unfair advantage; and
that advantage cannot be avoided.

The contracting authority generally has a duty to take steps to ensure that:

suppliers participating in preliminary market engagement are not put at an unfair advantage; and
the competition is not otherwise distorted.

4 Governing principles

4.1 What key principles govern public procurement in your jurisdiction?

The key principles of procurement law, as set out in the Public Contracts Regulations (PCR), are:

transparency;
equal treatment;
non-discrimination; and
proportionality.

Under the new Procurement Act, while provided for in a different manner from the PCR, the principles of procurement include:

transparency;
equal/fair treatment of suppliers; and
non-discrimination against treaty state suppliers.

In addition, contracting authorities will be required to have regard to the following statutory ‘objectives':

delivering value for money;
maximising public benefit;
sharing information for the purpose of allowing suppliers and others to understand the contracting authority's procurement policies and decisions; and
acting, and being seen to act, with integrity.

4.2 What requirements and restrictions apply with regard to the impartiality and independence of the procuring entity, including conflicts of interest?

As set out in question 4.1, one of the fundamental principles of the PCR is that contracting authorities must:

treat suppliers equally; and
act in a transparent manner.

More specifically, under Regulation 24 of the PCR, contracting authorities must take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures, so as to avoid any distortion of competition and ensure the equal treatment of all suppliers.

For this purpose, a ‘conflict of interest' includes any situation where relevant staff members of the contracting authority (including third-party services providers) that are involved in the conduct of the procurement process or may influence its outcome have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement.

Under the new Procurement Act, contracting authorities:

continue to be under a duty to treat suppliers equally;
must also have regard to the statutory objective of acting, and being seen to act, with integrity; and
are obliged to identify, review and mitigate conflicts of interest that arise or may arise during a procurement process.

5 Procedures

5.1 What different types of tender procedures are available in your jurisdiction? What are the advantages and disadvantages of each?

The different tender procedures available under the Public Contracts Regulations (PCR) are:

open procedure;
restricted procedure;
competitive procedure with negotiation (CPN);
competitive dialogue (CD);
innovation partnership; and
negotiated procedure without prior publication (discussed in question 5.2).

An advantage of the open procedure is that it is a quicker process with fewer stages than other procedures, meaning that it is commonly used for simpler procurements (eg, the purchase of ‘off-the-shelf' goods). However, as any interested supplier may submit a tender, the procuring entity could be faced with a large number of tenders, requiring more resource and time for evaluation. There is also no opportunity to negotiate with suppliers.

The restricted procedure includes a distinct pre-qualification/selection stage, allowing authorities to shortlist a number of suppliers (see question 3.4) to be invited to submit a tender. While this adds an additional stage to the process, making it longer, it can reduce the amount of time involved in evaluating tenders. As with the open procedure, no negotiation is permitted.

CPN and CD allow procuring entities to negotiate/dialogue with suppliers. These procedures are reserved for more complex requirements and the negotiation/dialogue inevitably means that the procurement process takes longer. However, the benefit of these procedures is that they are more flexible, enabling:

contracting authorities to provide feedback on their requirements; and
suppliers to update/improve submissions as the procurement progresses.

Innovation partnership is not a commonly used procedure. The clear advantage to it is that it is specifically tailored for genuinely innovative requirements. However, arguably CPN and CD operate equally well for innovative requirements and are both more tried-and-tested methods of procurement. An advantage of innovation partnership is that the contracting authority can work with suppliers to develop a bespoke item to meet their needs which is not currently available on the market. The procedure can be divided into stages (eg, research, development, rollout), meaning that the end product, services or works can be purchased by the contracting authority without the need for a separate procurement process.

The new Procurement Act largely retains the open procedure and introduces a new procedure called the competitive flexible procedure (CFP). Guidance will be released by the government on how CFPs may be structured, but it is clear that this procedure is intended – at least in principle – to give contracting authorities more flexibility.

5.2 What rules and requirements apply with regard to the direct award of contracts, without a tender procedure?

Contract can be directly awarded only in specific cases and circumstances, including where:

no suitable tenders or requests to participate have been submitted in response to an open or restricted procedure;
the works, supplies or services can be supplied only by a particular economic operator for reasons of art, technicality or exclusivity;
there are reasons of extreme urgency brought about by unforeseeable events; or
the products involved are manufactured for the purpose of research, development or innovation.

The contracting authority:

must not substantially alter the initial conditions of the contract; and
must publish a transparency notice informing the market of the direct award.

The position is similar under the new Procurement Act. Contracting authorities can directly award contracts without a tender procedure in certain circumstances, including:

to protect life, health or public order, subject to further regulations by ministers;
to procure prototypes, novel goods or services, or additional goods, services or works that require interoperability;
to deal with extreme and unavoidable urgency;
to contract with a single supplier for technical reasons, exclusive rights or artistic works; and
to supply air or maritime transport services to the armed forces or security services.

As with the current regime, public authorities must publish a transparency notice before making a direct award and a contract details notice after signing the contract.

5.3 What rules and requirements apply to the choice of tender procedure? What other factors play a role in this regard?

Under the PCR, there is no restriction on the use of the open and restricted procedures, so a contracting authority is free to decide which of these to use. Given their more complex nature, CD, CPN and innovation partnerships are available only in certain specified circumstances.

CD and CPN can be used to procure works, supplies or services that fulfil one or more of the following criteria:

The contracting authority's needs cannot be met without the adaptation of readily available solutions;
The requirements include design or innovative solutions;
The contract cannot be awarded without prior negotiation because of:
- specific circumstances related to the nature, the complexity or the legal and financial make-up; or
- risks attaching thereto;
The technical specifications cannot be established with sufficient precision by the contracting authority; or
An open/restricted procedure procurement has been run, but only irregular or unacceptable tenders have been submitted.

Innovation partnership should be used to procure innovative products, services or works that are not already available on the market.

A contracting authority should consider the advantages and disadvantages of each procurement procedure available to them based on all relevant factors, such as:

value for money;
alignment with business or project objectives;
resource availability;
risk allocation and mitigation;
supplier relationship; and
the nature and complexity of the specific project.

A contracting authority should also consider:

the feasibility, suitability and acceptability of each procedure to the project; and
the potential impacts on the project scope, budget, schedule, quality and risk.

5.4 How do the different types of tender procedures typically unfold? What are the typical timeframes for each?

Open procedure: Under the open procedure, any interested supplier can submit a tender in response to the publication of a contract notice. The minimum time limit for receipt of tenders is 35 days from the date on which the contracting notice was issued.

If the procuring entity has published a prior information notice, the minimum time limit can be shortened to 15 days, provided that certain conditions are satisfied. Where the 35-day time limit is impracticable for reasons of urgency, the time limit can be shortened to not less than 15 days from the date on which the contract notice is sent.

The time limits may be reduced by five days where tenders can be submitted electronically, which is usually the case.

Once tenders are submitted, they will be evaluated by the contracting authority. There are no set timeframes for the evaluation stage. Once the evaluation is complete and the winner identified, a minimum 10-day standstill period must be observed before any contract is awarded.

Restricted procedure: Under the restricted procedure, any interested supplier can submit a request to participate (usually by way of submission of a selection questionnaire). The minimum time limit for receipt of requests to participate is 30 days from the date on which the contract notice was sent.

Following the receipt of requests to participate, only those suppliers that are shortlisted will be invited to the tender stage. The minimum time limit for receipt of tenders is 30 days from the date on which the invitation to tender was sent.

If the procuring entity has published a prior information notice, the minimum time limit can be shortened to 10 days, provided that certain conditions are satisfied.

Sub-central contracting authorities may agree a time limit for the receipt of tenders with all selected candidates, provided that all suppliers have the same time to prepare and submit their tenders. In the absence of any such agreement, the time limit should be at least 10 days from the date on which the invitation to tender is sent.

Where the relevant time limits are impracticable for reasons of urgency, the time limits can be shortened as follows:

for receipt of requests to participate, not less than 15 days from the date on which the contract notice was sent; and
for receipt of tenders, not less than 10 days from the date on which the invitation to tender was sent.

The time limits may be reduced by five days where tenders can be submitted electronically, which is usually the case.

CPN: The timeframes for a CPN are similar to those set out above in respect of the restricted procedure. The key difference between these two procedures is the ability to include a negotiation stage in a CPN. There are no set timeframes for the negotiation stage, which on average may be between one and six months.

CD: The timeframes for a CD are similar to those set out above in respect of CPN. Again, there are no set timeframes for the dialogue stage, which on average may be between one and six months.

Innovation partnership: The timeframes for innovation partnerships are similar to those set out above in respect of CPN. In fact, the ‘procurement' stage of an innovation partnership is based on CPN. Once the ‘procurement' stage is complete, the evaluation is undertaken and the 10-day standstill period observed. The parties then enter into the innovation partnership stage, which is a contractual stage. There are no set timeframes for the innovation partnership stage.

5.5 What rules and requirements apply with regard to contract award criteria?

Contracts must be awarded on the basis of the ‘most economically advantageous tender' (MEAT), assessed from the point of view of the contracting authority. The MEAT:

will be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing; and
may include the best price-quality ratio.

The majority of contracts are awarded on the basis of the best price-quality ratio.

Qualitative criteria may include:

quality;
organisation;
qualification and experience of the staff assigned to perform the contract;
after-sales service and technical assistance; and
delivery conditions such as:
- delivery date;
- delivery process; and
- delivery period or period of completion.

Contract award criteria:

must be related to the subject matter of the contract; and
as has been clarified in a number of cases, may include relevant social, environmental and economic considerations.

The contracting authority must specify in the procurement documents the relative weighting given to each of the MEAT criteria, except where this is identified on the basis of price alone. Where weighting is not possible for objective reasons, the procuring entity must indicate the criteria in decreasing order of importance; however, this is rarely done in practice.

Under the new Procurement Act, contracts must be awarded on the basis of the ‘most advantageous tender' (MAT). The change from MEAT to MAT, and in particular the apparent focus away from price/cost considerations, is not intended to be a substantive change. Instead, it is intended as further clarification that wider issues – such as environmental, social and governance considerations – can be taken into account.

5.6 On what grounds will tenderers be excluded from a tender procedure?

Tenderers can be excluded from a public procurement process where either mandatory or discretionary grounds apply. The mandatory exclusion grounds are set out in full at Regulation 57(1) of the PCR and include:

offences relating to:
- bribery;
- corruption;
- conspiracy;
- fraud;
- money laundering;
- terrorism; and
- human trafficking and modern slavery; and
breaches of tax and social security obligations.

The discretionary exclusion grounds, which are set out in full at Regulation 57(7) of the PCR, include:

offences such as:
- theft;
- corporate manslaughter; and
- competition law infringement; and
poor performance or misconduct in previous contracts.

Tenderers which are subject to any of the exclusion grounds may be able to provide evidence to demonstrate that they have taken sufficient measures to demonstrate their reliability despite the existence of an exclusion ground. This is known as ‘self-cleaning' and is provided for at Regulation 57(13) of the PCR.

The position under the new Procurement Act is broadly similar to the current regime with some changes, including the following:

New offences – including theft, corporate manslaughter and competition law infringement – have been added as mandatory grounds;
Poor performance as a discretionary ground has been extended under the act to include situations where the supplier's performance has not improved despite it being given the opportunity to do so;
Tenderers can be excluded as a result of associated suppliers and subcontractors being subject to any of the exclusion grounds; and
A central debarment list for excluded tenderers has been introduced, preventing them from participating in any public procurement processes run by any contracting authorities for a specified period.

5.7 Are tenderers permitted to negotiate with the procuring entity as part of the tender procedure? If so, what rules and requirements apply in this regard?

If either the open procedure or the restricted procedure is used, no negotiation is permitted. Changes may be made by way of the clarification process.

If CPN or CD is used, a contracting authority can negotiate/enter into dialogue with suppliers. At a practical level, there is limited difference between ‘negotiation' and ‘dialogue'.

In a CPN (and similarly, in an innovation partnership), the contracting authority can reserve the right not to negotiate by stating so in the contract notice and instead award the contract on the basis of the initial tenders submitted. Once final tenders are submitted, no further negotiations are permitted.

In a CD, there is arguably more flexibility with respect to the final tenders, as these can be "clarified, specified and optimised". However, this must not modify the essential aspects of the contract or amount to a distortion of competition.

In any negotiation/dialogue, contracting authorities must:

ensure they comply with the principles of equal treatment and transparency; and
maintain confidentiality with suppliers.

5.8 What rules and requirements apply to the evaluation of tenders? What factors other than price play a role in this regard?

The evaluation of tenders must be:

based on the criteria and weightings published in the contract notice or invitation to tender; and
linked to the subject matter of the contract.

The criteria can include both price and quality aspects, such as:

technical merit;
environmental characteristics;
social value;
innovation;
delivery time; and
after-sales service.

The weightings must reflect the relative importance of each criterion for the contracting authority.

The contracting authority must:

apply the criteria and weightings objectively and consistently to all tenders;
not introduce any new or undisclosed criteria during the evaluation process;
document the evaluation process and the reasons for its decisions; and
inform the unsuccessful bidders of the outcome and the characteristics and relative advantages of the winning tender.

Regulation 67 of the PCR requires authorities to award contracts on the basis of the MEAT.

The position is the same under the new Procurement Act, albeit that contracts will be awarded on the basis of the MAT.

5.9 Do any special rules or requirements apply with regard to abnormally low bids?

Pursuant to Regulation 69 of the PCR, contracting authorities must investigate any tender that appears to be abnormally low in relation to the works, supplies or services to be provided. Contracting authorities may reject such a tender only after:

requesting a written explanation from the tenderer; and
verifying that the tender is abnormally low because of one of the reasons listed in the regulations, which include:
- the economics of the manufacturing process, of the services provided or of the construction method;
- the technical solutions chosen or any exceptionally favourable conditions available to the tenderer;
- the originality of the work, supplies or services proposed by the tenderer;
- compliance with applicable obligations regarding social, environmental and labour law;
- compliance with obligations regarding subcontracting; and
- the possibility of the tenderer obtaining state aid.

Under the new Procurement Act, the position is broadly the same. A contracting authority may disregard any tender that offers a price that is abnormally low for the performance of the contract. However, before doing so, the contracting authority must notify the supplier and give it a chance to justify the price and show that it can deliver the contract. The contracting authority must assess the information provided by the supplier and consult it if necessary.

5.10 How is the winning tenderer selected and what is the process for awarding the contract?

As set out in question 5.5, the winning tenderer is identified on the basis of the MEAT award criteria.

The PCR does not regulate the way in which an evaluation exercise is to be undertaken in practice. However, a number of cases have dealt with this stage of the procurement and it is a particularly sensitive part of the procurement process.

While different authorities will implement different processes, these generally include individual evaluation by subject-matter experts, followed by a moderation process. Tenders should not be reviewed by a single evaluator to mitigate the risks of bias and error, and taking average scores should be avoided.

5.11 What is the process for notifying unsuccessful tenderers of the outcome of the tender procedure?

Before a contracting authority can enter into a new contract, as soon as possible after the decision has been made, it must notify all tenderers (including the unsuccessful tenderers) by way of a notice communicating its decision to award the contract. This is frequently referred to as a ‘standstill letter'. There must then be a period of at least 10 days, known as the ‘standstill period', before the contracting authority can enter into the new contract.

The standstill letter must include:

the name of the successful tenderer;
the award criteria;
the score obtained by the recipient;
the score obtained by the successful tenderer;
the reasons why the recipient did not meet the technical specification;
the characteristics and relative advantages of the successful tender; and
a precise statement of the standstill period.

If court proceedings are commenced by an unsuccessful tenderer within the standstill period, the contracting authority must suspend the award process until:

the proceedings are resolved; or
the automatic suspension is lifted by a court order.

Under the new Procurement Act, standstill letters will be replaced by assessment summaries. Assessment summaries will be sent to each tenderer, including the successful tenderer, and will include information about the authority's assessment of that tenderer's tender. Details of the content required in assessment summaries will be contained in secondary legislation but it is expected that it will be largely similar to that required for standstill letters under the current regime.

5.12 Is joint procurement possible? If so, in what circumstances is it typically used and what rules and requirements apply in this regard?

Joint procurement is generally undertaken in one of two ways.

The first is procurement by a central purchasing body (CPB). CPBs are contracting authorities that provide central purchasing activities on a permanent basis. The most obvious example of a CPB in the United Kingdom is the Crown Commercial Services, which procures arrangements on behalf of the UK public sector. CPBs procure contracts/framework agreements which are accessible by contracting authorities and the procuring contracting authority fulfils its procurement law obligations by procuring through a CPB.

The second means of joint procurement is through occasionally joint procurement. This is where one or more contracting authorities/utilities jointly procure a specific requirement. The rules also apply where one contracting authority/utility procures a requirement on behalf of itself and other contracting authorities/utilities.

5.13 What rules and requirements apply in regard to a procuring entity's record keeping during a tender procedure?

A contracting authority must keep sufficient documentation to justify decisions taken at all stages of the procurement procedure, in accordance with:

Regulation 84 of the PCR; and
the principles of transparency and equal treatment of economic operators.

The documentation should include at least:

the conditions for participation and selection criteria applied, and the reasons for their choice, as well as the weighting and other methods used to identify and compare tenders;
the names and addresses of the economic operators selected for participation in the procedure and of the tenderers, and the reasons for their selection or rejection;
the name of the successful tenderer and the reasons why its tender was selected and, where known, the share (if any) of the contract or framework agreement it intends to subcontract to third parties;
any conflicts of interest detected and subsequent measures taken; and
all communications with tenderers or other economic operators and internal deliberations.

The contracting authority must retain this documentation for at least three years from the date of award of the contract or conclusion of the framework agreement.

6 Modifications

6.1 What rules and requirements apply to modifications during the tender procedure – for example, to the contract specifications or conditions, to the timetable or to the members of a bidding consortium?

Certain modifications are permitted during a tender procedure, depending on whether the changes:

are material;
are provided for in the procurement documents; or
are necessary due to unforeseen events.

A contracting authority is permitted to extend the time limits for the receipt of tenders in the following circumstances (in accordance with Regulation 47(3) of the Public Contracts Regulations (PCR)):

A contracting authority fails, for whatever reason, to supply additional information requested in good time by the tenderer by, at the latest:
- six days before the time limit for receipt of tenders; or
- in an accelerated procedure, four days; or
Significant changes are made to the procurement documents. ‘Significant changes' are changes that result in suppliers needing additional time in order to understand and respond properly to the changes. However, they must not be so substantial that they make the contract materially different from that initially set out in the procurement documents.

Modifications to the members of a bidding consortium are allowed if:

the new members meet the selection criteria and do not distort competition; and
the change is notified to the contracting authority before the award decision.

If the changes are significant, a contracting authority should consider recommencing the competition; otherwise, it may be vulnerable to challenge. If the changes are not significant, the authority can make the relevant changes but should allow extra time in the process for tenderers to take account of them.

Any changes should be communicated to all tenderers in a timely manner; and the contracting authority should ensure that, in making any changes, it is:

acting proportionately; and
treating all tenderers fairly.

6.2 Is the procuring entity permitted to negotiate with the successful tenderer after the contract has been awarded? If so, what rules and requirements apply in this regard?

Where a contracting authority has used the competitive dialogue procedure, it may request to negotiate with the successful tenderer to confirm financial commitments or other terms contained in the tender by finalising the terms of the contract (in accordance with Regulation 30(20) of the PCR), provided that this:

does not have the effect of materially modifying essential aspects of the tender or of the public procurement, including the needs and requirements set out in the contract notice or in the descriptive document; and
does not risk distorting competition or causing discrimination.

6.3 Are any contract modifications permitted post award? If so, what rules and requirements apply in this regard?

Regulation 72 of PCR contains explicit provisions which regulate modifications post-award of the contract. It provides for six grounds under which modifications can be made without the need to run a fresh procurement procedure. Any modifications that do not satisfy any of the following six grounds will require a new procurement procedure:

The contract includes express review terms;
Additional works, services and supplies are required by the original contract which were not provided for in the initial contract, provided that any increase does not exceed 50% of the original contract value;
The need has been brought about by circumstances which a diligent contracting authority could not have foreseen, provided that:
- it does not alter the overall nature of the contract; and
- any increase in price does not exceed 50% of the value of the original contract or framework agreement;
A new contractor replaces the contractor to which the contracting authority had initially awarded the contract, including due to a merger or acquisition or corporate restructuring;
The modification is not substantial; or
The modification is:
- below threshold; and
- below 10% of the initial contract value for service and supply contracts; or
- below 15% of the initial contract value for works contracts.
Where several successive modifications are made, the value shall be the net cumulative value of the successive modifications.

Under the new Procurement Act, the position is largely similar but there are some key changes, including:

where the change is required due to the materialisation of a ‘known risk';
where the contract could be awarded directly for reasons of urgency and the need to protect life; and
in certain circumstances, for a defence authority contract.

If the term of the contract is increased or decreased by more than 10%, this will now be considered to be a substantial modification.

Contracting authorities:

will be required to publish a contract change notice before modifying a public contract or a convertible contract; and
may need to enter into a standstill period.

The new Procurement Act also introduces the new concept of a ‘convertible contract'. A convertible contract is one which was not originally considered to be a public contract pre-modification as it was below the applicable financial threshold but which, as result of the modification, is now above threshold and therefore becomes a public contract.

6.4 Can the contract be transferred to a third party post award? If so, what rules and requirements apply in this regard?

Replacing or transferring a contract to a third party will be treated as a modification of the contract for the purpose of the PCR. Regulation 72 deals with modifications of public contracts during their term. In particular, Regulation 72(1)(d) permits modifications to public contracts or framework agreements where:

a new contractor replaces the contractor to which the contracting authority had initially awarded the contract;
this replacement is the result of:
- an unequivocal review clause or option; or
- a universal or partial succession into the position of the initial contractor following corporate restructuring (eg, takeover, merger, acquisition or insolvency);
the new entity is capable of meeting the selection criteria which applied to the original procurement;
the replacement does not entail other substantial modifications to the contract; and
the replacement is not aimed at circumventing the application of the PCR.

7 Review

7.1 Which national bodies are responsible for enforcing procurement laws and regulations?

In accordance with Regulation 91 of the Public Contracts Regulations (PCR), duties under the procurement regulations are enforced through the High Court of England and Wales. Claims under the procurement regulations must be brought in the Technology and Construction Court, a specialist division of the Business and Property Courts (itself a sub-division of the High Court).

This remains the same under the new Procurement Act.

7.2 On what grounds can a decision of a procuring entity be reviewed? Who has standing to submit an application for review?

The decision of a contracting authority can be challenged if, in relation to that decision, it is alleged that there has been a breach of the regulations.

Claims can be brought by any ‘economic operator' which, as a consequence of the alleged breach, suffers or risks suffering loss or damage. ‘Economic operator' is defined in the regulations as: "any person or public entity or group of such persons and entities, including any temporary association of undertakings, which offers the execution of works or a work, the supply of products or the provision of services on the market."

This would provide standing to any disappointed tenderers that have been affected by alleged breach(es), including those that did not participate in the procurement. Depending on the specific circumstances, other economic operators such as subcontractors may also have standing.

The new Procurement Act no longer refers to ‘economic operators' and instead refers to ‘suppliers'. As under the current regime, claims will be able to be brought by any supplier which has suffered, or is at risk of suffering, loss or damage as a consequence of the breach.

7.3 What is the limitation period for submitting an application for review?

The limitation period in respect of breaches of the procurement regulations is incredibly short in comparison to that for other types of claims. Claims must be brought within 30 days of the date on which the claimant first knew (or ought to have known) that the grounds for bringing the claim had arisen (Regulation 92 of the PCR). In the context of procurement claims, ‘knowledge' is more than a mere suspicion and equates to knowledge of facts which clearly indicate, but need not prove, an infringement of the regulations.

This limitation period is tied to knowledge of a potential breach, and not to the communication of the outcome of the procurement process. If, for example, the breach concerns a provision contained within the ITT, a potential claimant cannot wait until the outcome of the procurement process is known before bringing proceedings.

The limitation period can be extended by the court to up to three months after the date on which the claimant knew (or ought to have known) that the grounds for bringing the claim had arisen if there is good reason for doing so; but this is admitted only in exceptional circumstances.

Where the contract which is subject of the claim has already been entered into, the claimant can bring a claim for a ‘declaration of ineffectiveness'. For declarations of ineffectiveness, the limitation period is as follows:

within 30 days of the contracting authority publishing a contract award notice or informing the claimant of the conclusion of the contract; and
in any event, no later than six months from the date on which the contract was entered into.

The limitation period remains the same under the new Procurement Act.

7.4 Does the submission of an application for review have a suspensive effect on the tender procedure?

If the claim is issued prior to the proposed contract being entered into (regardless of whether this is within the ‘standstill period'), it will trigger ‘automatic suspension', which prevents the contracting authority from entering into the contract which is the subject of the proceedings. The claimant need not serve the claim form but need only notify the contracting authority that it has done so in order for the automatic suspension to be triggered. The automatic suspension will remain in place until:

the court orders that it be lifted;
the claim is determined/discontinued; or
the parties have agreed otherwise.

The contracting authority can apply to the court to have the automatic suspension lifted, thereby enabling it to enter into the contract and confining the claimant to a claim in damages and/or a declaration of ineffectiveness. Such applications can be made either:

with the consent of the claimant; or
as a contested application.

Applications to lift the automatic suspension are often successful, although each application will turn on its own facts.

Whereas the automatic suspension is currently triggered if a claim is issued at any point prior to entry into the contract, irrespective of whether the standstill period has expired, under the new Procurement Act the automatic suspension will not be triggered unless a claim is issued and brought to the attention of the contracting authority within the eight-working-day standstill period, regardless of whether the contract has been entered into following the expiry of the standstill period. The new Procurement Act also extends the automatic suspension to include modifications of contracts.

7.5 What is the typical timeframe for review proceedings?

Proceedings typically take 12 to 18 months to reach a final hearing, although this can be expedited if it can be shown to the court's satisfaction that there is sufficient urgency requiring swifter resolution of the claim. Expedited proceedings can reach a final hearing in as little as six months.

7.6 What costs are typically incurred in review proceedings?

The court fee for issuing proceedings is between £569 and £10,000, depending on the remedy and the level of damages sought.

Costs in proceedings can be significant; and in addition to its own costs, the ‘losing' party in any claim is also usually liable for a significant portion (circa 70%) of the successful party's legal costs. Costs will ordinarily be subject to the cost budgeting regime, which involves a process of estimating and controlling the legal costs of a case. Parties must file and exchange budgets detailing their anticipated and incurred costs for the duration of the proceedings. Once approved by the court, the budgets prescribe the total amount either party can recover in the event it is successful, other than in exceptional circumstances. Cost budgets should be kept under review but can only be amended:

by approval of the court; and
where there has been a significant development in the litigation.

The aim of cost budgeting is to promote access to justice, proportionality and certainty of costs; although certain claims may be exempt from the cost budgeting process.

7.7 What enforcement powers and remedies are available where a breach of the procurement rules is found?

The powers and remedies available to the court depend on whether the contract that is the subject of the claim has been entered into.

Where the contract has not yet been entered into, the court has power to order one or more of the following remedies:

that the decision or action taken by the contracting authority be set aside;
that the contracting authority amend any document; and
that the claimant be awarded damages for loss or damage suffered as a result of the contracting authority's breach(es) of the regulations.

Damages can include not only lost profits but also recovery of overheads and wasted bid costs. The level of damages awarded will depend upon whether the court is persuaded that:

the claimant would definitely have succeeded in securing the contract (in which case it may be awarded the full amount of its lost profits); or
there is merely a chance that it could have done so (which could result in a damages award of the proportion of its lost profits corresponding with the ‘loss of chance' it has suffered – that is, the percentage likelihood that it would have secured the contract).

Where the contract has been entered into, the only remedies available are:

damages (assessed on the same basis as set out above); and
either:
- a declaration of ineffectiveness; or
- a contract shortening order.

A declaration of ineffectiveness has the effect of prospectively cancelling the contract. If such a declaration is made, the court must also impose a civil financial penalty on the contracting authority. There is no set level of penalty, but it must be "effective, proportionate and dissuasive", and will depend on the specifics of the case. By way of example, in Faraday Development Ltd v West Berkshire Council [2018] EWCA Civ 2532, the court concluded that there was no evidence to suggest that the contracting authority had acted in bad faith or had sought deliberately to avoid the application of the regulations. As a result, the civil penalty imposed on the council was fixed at a nominal sum of £1.

A contract shortening order shortens the contract and requires that the contracting authority undertake a new procurement within a certain timeframe prior to the contract expiring.

As with the existing regime, the remedies available under the new Procurement Act will differ depending on whether the contract has been entered into. Where the contract has not been entered into, the court will have the power to order one or more of the following remedies:

that the decision or action of the contracting authority be set aside;
that the contracting authority take a specific action;
that the claimant be awarded damages; and
any other order it considers appropriate.

Where the contract has been entered into, the new act retains a remedy in damages. The declaration of ineffective remedy is also retained but is recast as an order for ‘set aside'. There will no longer be a power for the court to order a civil financial penalty.

7.8 Can the review decision be appealed? If so, what is the process for doing so?

If either party is dissatisfied with the outcome of the proceedings, it can seek permission to appeal within 21 days of the date of the first-instance judgment. It is normal practice to seek permission to appeal from the High Court. If permission is not granted by the High Court, it can be sought directly from the Court of Appeal.

In seeking to appeal the decision, the following documents must be sent to the Court of Appeal:

the appellant's notice, which set out the details of the appeal;
the grounds of appeal, setting out the reasons for appeal;
a skeleton argument, outlining the appellant's arguments; and
a sealed copy of the decision being appealed.

The appeal will then be listed for hearing by a panel of two or three judges. Unless the court grants permission, no new evidence can be presented and the court's decision will be based on the information and evidence available at first instance. The Court of Appeal may:

allow all or part of the appeal;
dismiss it entirely; or
order a retrial.

The position remains the same under the new Procurement Act.

8 Privatisations and public-private partnerships

8.1 Do any special rules apply with regard to privatisations in your jurisdiction?

There are no special rules for privatisations under the Public Contracts Regulations (PCR). Much will depend on the structure of the privatisation; but if it amounts to a ‘public contract' (see question 2.2), it will be subject to the PCR in the normal way.

8.2 Do any special rules apply with regard to public-private partnerships in your jurisdiction?

There are no special rules for public-private partnerships under the PCR. These arrangements have generally been procured through the PCR as ‘public services contracts'. Contracting authorities generally use competitive dialogue or the competitive procedure with negotiation to procure these requirements.

9 Environmental, social and governance

9.1 How are ESG factors influencing public procurement in your jurisdiction? What specific concerns and considerations should be borne in mind in this regard?

ESG factors are becoming increasingly important in public procurement in the United Kingdom. The change from ‘most economically advantageous tender' to ‘most advantageous tender' (see question 5.5) is aimed, in part, at clarifying that award criteria can refer to ESG-type considerations.

Many contracting authorities are increasingly focusing on ESG factors as part of the selection and award stages of their procurement processes. At the selection stage, the government has made several updates to the standard form selection questionnaire that contracting authorities use to account for these factors. These include, for example, a focus on:

carbon reduction;
skills and apprenticeships; and
tackling modern slavery.

10 Trends and predictions

10.1 How would you describe the current public procurement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The current procurement landscape is in a state of flux. Significant legislative reforms will come into force in the next 12 months. The Public Contracts Regulations, the Utilities Contracts Regulations, the Concession Contracts Regulations and the Defence and Security Public Contracts Regulations will be repealed and replaced by the new Procurement Act, which is expected to come into force in October 2024. It is expected that the Procurement Regulations 2024, which sit under the new Procurement Act, will come into force at the same time.

11 Tips and traps

11.1 What are your top tips for participants in public procurement procedures in your jurisdiction and what potential sticking points would you highlight?

Suppliers should:
- familiarise themselves with the rules and regulations of the procurement process;
- follow them carefully; and
- ensure that they are aware of what the authority should be doing and when.
Suppliers should monitor the notices published by authorities in order to:
- stay updated on opportunities; and
- ensure that authorities are complying with the regulations.
If there are any ambiguities or anything is unclear, suppliers should clarify these with the authority as soon as possible.
Due to the short limitation period under the procurement regulations, it is important to move quickly so that suppliers can protect their position in the event of any breach or potential breach by the authority.

11.2 What are your top tips for procurers in your jurisdiction and what potential sticking points would you highlight?

Build flexibility into the process.
All decisions and actions should be documented so that in the event of any challenges, the authority can clearly demonstrate the decisions made and the rationale for those decisions.
Procurement regulations apply throughout the duration of the contract. Authorities should:
- monitor the performance and compliance of suppliers; and
- manage any risks or disputes that may arise during the contract execution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Public Procurement Comparative Guide

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