Procurement Act 2023 Update 5

Procurement Act Update 5 - Assessment Summaries and Remedies

What are the changes to the remedies regime?

The gamut of remedies available to an aggrieved supplier under the Procurement Act 2023 remains largely  the same as under the Public Contracts Regulations 2015 (PCR), with pre and post contractual remedies including pre-contract orders of the Court to set aside  decisions, damages and (the confusingly named) “set aside” remedy (previously known as a declaration of ineffectiveness) available in certain circumstances where the contract has already been entered into. 

The crucial 30 day limitation period also remains, with time starting to run from the point at which the supplier knew or ought to have known about the circumstances giving rise to the claim and the automatic suspension operating in much the same way.

Arguably the greater transparency requirements, including the new assessment summaries, under the new regime gives greater opportunity for bidders to seek remedies pre-contract award since more information is in the public domain.

What does an assessment summary have to include?

Like the old standstill letters under PCR, s.50 (3) of the Procurement Act 2023 introduces a requirement for contracting authorities to provide assessment summaries to each bidder that has submitted an assessed tender. This occurs before the contracting authority publishes a contract award notice, and publication of the notice is what triggers the commencement of the new eight working day standstill period under s.51. Only at the end of this period will the contracting authority be permitted to enter into the awarded contract. 

This move towards greater transparency finds expression in the adjusted rules around the mandated contents of these assessment summaries. Whilst s.50 of the Procurement Act 2023 simply refers to providing “information” about the assessment of the tender and also the most advantageous tender, more detailed requirements are set out in the secondary legislation – The Procurement (Transparency) Regulations 202X (not currently finalised). These confirm that contracting authorities must include, among other things:

• the award criteria set out in full, or a summary of these
   
• a summary of the assessment methodology
   
• detailed reasons, with reference to all relevant information set out in the tender, for—
   
  • the score against each award criterion (“A”), 
  • (the reasons why the tender was not given the score immediately above A for that criterion (except where the tender was given the highest score), and 
  • in a case where a criterion is arranged into different strands for assessment, an explanation of how the tender was assessed against each of those different strands,
     
• the total score, and any sub-total scores, for the tender against all of the award criteria
   
• if it is for an unsuccessful tenderer:
   
  • an explanation of why the tender was unsuccessful; and 
  • all of the above information in respect of the most advantageous tender. (MAT Tender) 

The full breakdown of both sets of scoring is a development of the case law about disclosure but should also put to bed the disputes about pre-action disclosure seen so often in procurement cases.

The policy aim of the introduction of assessment summaries is to make the process less time consuming for contracting authorities and to give greater clarity to the content of the pre- standstill communication. Removal of the requirement to specify the “characteristics and relative advantages” of the successful tenderer and replacing it with the requirement to simply replicate information in respect of the MAT Tender should make preparation of assessment summaries more straightforward than old style standstill letters and should mean that the danger of a contracting authority engaging in a comparative exercise at evaluation stage would be removed. 

In preparation for implementation, contracting authorities should review their document templates and ensure these are updated for use in all procurements post October 2024. 

Please see our previous article on this, Procurement Act 2023 Update 4 - What is the role of frameworks and dynamic markets in procurement?

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