Procurement Update 3
Transparency and notices
Procurement Update 3: Transparency and notices
An increase in the volume of mandatory notices contracting authorities are required to publish is a consequence of the push towards greater transparency, a key driver behind the Procurement Act 2023 (Act).
In this, our third update on key changes of the Act we look at some of the detail behind these notices, their timing and what they have to cover, how they differ from the notices required by the Public Contracts Regulations 2015 (PCR) and what this means for contracting authorities and suppliers.
Get ready for the new notice requirements
We have set out below tables for each phase of procurement summarising the main notice and transparency requirements we anticipate will be most commonly used and their key characteristics:
Final details of the form and content of the notices referred to are yet to be finalised, but a draft form of The Procurement (Transparency) Regulations have been published as part of the further consultation process. References below to sections are to sections of the Act.
Pre-Procurement Notices | |||
| Notice Type | What does it cover? | When should it be published? | Optional or Mandatory? |
| Planned Procurement Notice or PPN (s.15) | Like a PIN under the PCR, this notice sets out that the contracting authority intends to publish a Tender Notice. | At least 40 days but not more than 12 months before the day on which the Tender Notice is issued for it to be a “qualifying pre-procurement notice” if the contracting authority wishes to benefit from reduced minimum periods in the tendering process | Optional |
| Preliminary market engagement notice (s.17) | Informs the market that the contracting authority intends to or has conducted preliminary market engagement. | Prior to issuing a Tender Notice | Optional but if the contracting authority carries out pre-market engagement without a notice, it must publish its reasons for not doing so in its Tender Notice |
| Pipeline Notice (s.93) | This notice covers any contract with an estimated value exceeding £2 million in respect of which the contracting authority intends to publish a Tender Notice or transparency notice during “the reporting period” ie a period of 18 months starting with the first day of the relevant financial year | Prior to the end of a 56 day period starting with the first day of the relevant financial year. | Mandatory if the contracting authority anticipates a total spend of over £100 million in the financial year in relation to any relevant contracts for the supply of any goods, services or works to the contracting authority. |
Procurement Phase Notices | |||
| Notice Type | What does it cover? | When should it be published? | Optional or Mandatory? |
| Tender Notice (s.20) | A Tender Notice, like a Contract Notice under the PCR, invites tenderers to submit a tender or a call to participate in a procurement procedure. Note the requirement to publish any associated tender documents at the same time. | Minimum “tendering periods” for a competitive procedure are set out in s.54 by reference to the publication of the Tender Notice. Timing of the Tender Notice will therefore be crucial in determining the structure and timetable of the procurement procedure. | Mandatory where a contracting authority is undertaking a competitive tendering procedure, including for awards by reference to membership of a dynamic market. |
| Below-threshold notice (s.87) | This notice is used for the purpose of inviting tenders for a below threshold contract. | Time limits for submitting tenders set out by the notice must be reasonable | Mandatory if it is a “notifiable below threshold contract” ie it exceeds £12,000 (central government authority) or £30,000 (other contracting authorities), and the contracting authority is inviting tenders for the contract (unless they are requested only from pre-selected or particular suppliers). |
| Transparency notice (s.44) | The notice alerts the market that a contracting authority intends to make a direct award of a contract (under either s.41 or s.43). | Before entering the contract to be awarded directly. | Mandatory, unless the contracting authority is using direct award for protection of life or user choice grounds. |
| Dynamic Market Notices (s.39) | A series of notices, these notices must be published at certain points during the life of a dynamic market (DM) including:
| As set out below against each required notice:
| Mandatory |
Award Phase | |||
| Notice Type | What does it cover? | When should it be published? | Optional or Mandatory? |
| Contract award notice (s.50) | A notice setting out that the contracting authority intends to award a contract | After providing tenderers with an assessment summary and before entering into a contract (not after, as under the PCR) This triggers the 8 working day standstill period. | Mandatory |
| Contract details notice (s.53) | The notice should set out that the contracting authority has entered into a contract. Note that s.53(3) also requires the contract itself to be published where the contract exceeds £5million. | After entering into the contract as follows:
For publication of the contract itself as follows:
| Mandatory notice, including for certain below threshold contracts (see s.87(3)). |
| Procurement termination notice (s.55) | This is a notice to inform the market that a procurement process which was previously advertised as commencing has been terminated without an award being made. | The notice should be publicised as soon as reasonably practicable after making the decision not to make a contract award. | Mandatory |
Contract Management Phase | |||
| Notice Type | What does it cover? | When should it be published? | Optional or Mandatory? |
| Key Performance Indicators (s.52) | Not strictly a notice, but for contracts over £5 million, a contracting authority must publish the at least 3 KPIs it is required to have in place under s52. | At least 3 KPIs must be set for over value contracts as part of the award procedure (pre award) | Mandatory for contracts over £5million, but not for frameworks, concessions or light touch contracts |
| Contract performance information (s.71) | Again, not strictly a notice, but for contracts where s52 applies, a contracting authority is required to:
Where there is poor performance in accordance with s71(4), details of the poor performance must also be published. Note that this provision does not apply to a light touch contract. | At least once in every period of twelve months during the life-cycle of the contract and on termination of the contract. Where poor performance arises, this information must be published within 30 days of the breach or failure to perform. | Mandatory where circumstances apply. |
| Contract change notice (s.75) | This notice must be published where the contracting authority intends to make certain contract modifications, subject to a number of exceptions. A copy of the modified contract or the modification also has to be published (see s75) | Before the contract modification is undertaken. Where the value of the contract (before or after the modification) is over £5M, a copy of the modification or the modified contract has to be published within 90 days of the date of the modification (see s.77). | Mandatory where circumstances apply. |
| Contract termination notice (s.80) | This notice sets out that the contract has been terminated (including expiry) | Within 30 days of contract termination | Mandatory |
What does this mean for contracting authorities?
Many of the key notices we are all familiar with under the PCR are replicated under the Act, albeit adopting different language, however, the number of notices has certainly increased, placing additional administrative burdens on contracting authorities but giving greater transparency on the award and functioning of public contracts. We understand that greater use of digital tools will be encouraged to ensure that data required for publication is more easily and readily available wherever possible.
The most significant changes in the Act are to the information which has to be published during the lifetime of publicly awarded contracts, and the publication of poor performance information is certainly going to be of interest to the supplier market.
In order to prepare for the changes, we recommend that contracting authorities:
- Familiarise themselves with the transparency changes and changes to notices;
- Consider where data, including relevant contract information is recorded and held;
- Look out for further information on the detail of notices, updating internal processes and proforma documents wherever possible.
