Welcome to the second part of our Q&A series following our recent procurement update webinar – The PA23 Story So Far.
In this article, we continue answering as many of your questions as possible, covering further key issues and practical challenges that contracting authorities are facing under the new regime.
If you missed Part 1, you can read it here. You can also view the full webinar recording here.
Conflict of interest
Do you need to complete a conflict of interest assessment for a regulated below-threshold procurement?
A conflict of interest assessment must be prepared before publishing a tender or transparency notice in relation to a covered procurement, and a 'covered procurement' means the award, entry into and management of a public contract. A regulated below-threshold contract is not a public contract as defined under PA23, therefore there is no requirement to complete a conflict of interest assessment for regulated below-threshold procurements.
That said, it is good practice and good internal governance to carry out some form of assessment. However, keep the assessment proportionate - a simple conflicts declaration form completed by those involved in the procurement, combined with a brief consideration of any obvious conflicts arising from the supplier market, will usually suffice and should be documented even if no conflicts are identified.
Direct awards and transparency
If we make direct awards through a framework, do we need to publish a transparency notice after each direct award?
A Transparency Notice is required when there is a direct award under section 41 (direct award in special cases) or section 43 (switching to direct award) of the Procurement Act 2023.
A Transparency Notice is only relevant to frameworks where the contracting authority intends to directly award a single supplier framework agreement. It is not relevant for open frameworks, as these cannot be directly awarded.
When 'directly awarding' through a framework, this is better referred to as an award under a framework 'without further competition' rather than a 'direct award', as the supplier has already participated in a competitive procedure to earn a place on the framework. There is no requirement to publish a Transparency Notice where there is an award of a contract under a compliant framework without further competition. The correct notice to publish for a below threshold award is a Below-threshold Contract Details Notice and for an above threshold award a Contract Details Notice. For further information please refer to the PA23 and Regulations.
KPI reporting
Regarding KPI reporting requirements - whilst there is a requirement to publish contract performance once in a 12-month period, must the reporting cover the entire 12-month period, or could you report on a single month of performance for three KPIs?
Where a contracting authority has set KPIs under section 52(1) of PA23, it is required to, at least once in every twelve-month period during the lifetime of the contract and on termination, assess the supplier's performance against those KPIs and publish certain information in relation to that assessment in the contract performance notice. PA23 does not prescribe the specific period over which performance must be assessed against the KPIs - the requirement is simply that there must be an assessment of performance against the three KPIs which the contracting authority regards, at the time the contract performance notice is published, as most material to performance of the contract obligations.
The KPIs must be assessed in accordance with the ratings set out in regulation 39(5), and regulation 39 requires that the notice must state the time period to which the assessment applies, but does not mandate what that time period must be.
Whilst the legislation doesn't mandate that you report on the full 12-month period, reporting on just a single month's performance is perhaps not within the spirit of the transparency objectives underpinning PA23, as a single month's data provides limited insight into overall contract performance and could be unrepresentative. Unless there are specific reasons to take a different approach (e.g. if performance has seasonal variations), we recommend reporting on contract performance across the entire 12-month period (or the period since the last performance notice or contract commencement, if shorter), aggregating or averaging KPI performance data across the full period and providing context where performance has fluctuated.
