Thank you to everyone who joined us for our recent procurement update webinar – The PA23 Story So Far. We were delighted by the level of engagement and the number of questions submitted during the session.
Whilst we couldn't address every query during the live Q&A, we received so many excellent questions that we've created a two-part series to ensure we answer as many as possible. This first article addresses some of the most frequently asked questions and key themes that emerged. We hope these answers provide the practical clarity you need as you continue to implement PA23!
If you'd like to revisit the topics we covered or share with colleagues and contacts, the webinar recording can be viewed here.
Assessment Summaries and Standstill
When is an Assessment Summary required for suppliers who do not proceed to tender evaluation - for example, those who fail the Procurement Specific Questionnaire or are not shortlisted in a multi-stage procedure such as the Competitive Flexible Procedure?
Assessment summaries need only be provided to tenderers that submitted an "assessed tender", meaning one which (i) was submitted and assessed for the purposes of determining the most advantageous tender, and (ii) was not disregarded in the assessment of tenderers. Tenderers who are excluded at an early stage in the process, for example following the suitability stage, are therefore not entitled to receive a full assessment summary at the conclusion of the process.
Nevertheless, authorities should provide an appropriate level of detail to those tenderers at the stage they are excluded so they understand why they were de-selected. The Cabinet Office Guidance on Competitive Tendering Procedures advises contracting authorities to use the same feedback structure for intermediate rounds as the assessment summary structure (which has been designed to ensure suppliers receive a robust explanation for their scores, having regard to the objectives at section 12(1)(c) and 12(1)(d) of PA23).
When does the standstill period commence - on the date the Assessment Summary is issued or the day after and does the time of day matter?
It is the publication of the Contract Award Notice that commences the eight working day standstill period, i.e. that day of publication of the Contract Award Notice will be day one of eight. Contracting authorities cannot publish a Contract Award Notice without having first provided an assessment summary to each supplier that submitted an assessed tender. The PA23 does not prescribe any particular period of time between the provision of the assessment summary and the publication of the contract award notice and in the majority of circumstances contracting authorities will want to publish them simultaneously.
If you are planning a procurement process now, or are currently in the midst of one, it is important to reflect on your timeline for releasing Assessment Summaries and the Contract Award Notice. If your timeline indicates any dates between 12th December and 31st December, you may want to reconsider that window or embrace the possibility of a longer than desired standstill period now that the period is calculated in working days. For more guidance on managing procurement timelines over the festive period, see our recent article on this subject.
Transitional Arrangements
If a contract governed by the old regime is modified now, does the new regime apply to the modification, or does the old regime still apply?
In short, any contracts awarded under the old regime continue to be managed by the old regime until the contract ceases to exist (including below threshold contracts). Therefore, the previous legislation (using provisions set out at regulation 72 of the Public Contract Regulations 2015, regulation 88 of the Utilities Contract Regulations 2016 and regulation 43 of the Concession Contracts Regulations 2016 as appropriate) will apply to any modifications, even if the modification occurs after the PA23 came into force.
We haven't forgotten the old regime just yet and continue to advise on modifications under it regularly!
Has the expiry date for all Dynamic Purchasing Systems (DPS) established under the old regime been amended?
Under the transitional and saving regulations any DPS established under the previous regime must come to an end either (a) on the date they expire as set out when they were established, or (b) by 23rd February 2029 (four years after the new regime comes into effect), whichever is earlier. Any contract awarded under a DPS will continue until it comes to an end and be managed by the previous legislation (even if the DPS has terminated prior to that point).
Please note that the regulations restrict the ability to extend a DPS awarded under the previous regime by providing that any DPS extended after the PA23 comes into force can only be extended in the first 12 months after the PA23 comes into force and cannot be extended beyond 23rd February 2029.
Open Frameworks
What does "at least" mean in the context of reopening an Open Framework after three years? Can it reopen sooner and more frequently?
An open framework must provide for the framework to be 're-opened' at least once in the first three years of the life of the scheme and at least every five years thereafter. This means that before the third anniversary of the award of the first framework entered into in the scheme, the scheme must be 're-opened' and a new framework must be awarded pursuant to it.
Note that "at least" means these are minimum requirements - you can re-open more frequently if you wish. However, if you intend to do so, make this clear in your terms from the outset so that suppliers understand how often re-opening opportunities will arise and can plan their participation accordingly.
From a contractual perspective, open frameworks are complex and require careful consideration. We suggest you seek specialist legal advice if you are considering setting one up.
