24/02/2026
At the first anniversary of the implementation of the Procurement Act 2023, we have reflected on the issues that have most tested our clients over the past 12 months. Drawing on questions submitted through our ProAct portal, we have summarised 12 of the key themes below.
Before we start
We will be hosting a webinar on 25 March at 12:00 (1 Hour) to explore the most challenging areas in more detail and share practical guidance. The registration link for this webinar can be found here. You can help shape the session by giving your feedback and experiences here.
12 Key Questions Since Implementation
1. How much flexibility is there in framework call-offs?
Section 46(8) provides that mini-competitions may only be conducted by reference to one or more of the award criteria used to establish the framework. Section 46(9) allows those criteria to be refined, but they must remain rooted in the original criteria.
In practice, this means framework users cannot introduce entirely new award criteria at call-off stage. Any refinement must remain compliant with the Section 12 objectives, and changes to evaluation criteria carry potential challenge risk.
2. Can you re-open only certain lots in an open framework?
We do not consider that this reflects the intention of the Act. Re-opening an open framework effectively establishes a new framework on substantially the same terms and brings the previous framework to an end.
As a result, individual lots cannot continue independently, instead the scheme must be treated as a whole.
3. Can an open framework be set up for less than eight years?
The Act contemplates a scheme of open frameworks operating for up to eight years. While an authority may terminate a scheme earlier, there is no express mechanism allowing an authority to state at the outset that the scheme will run for a shorter fixed period.
Early termination remains possible, but the structure of the legislation suggests the default expectation is an eight-year scheme.
4. Can suppliers carry forward scores when an open framework is re-opened?
This depends on whether supplier places are limited:
- If places are unlimited, existing suppliers may remain on the framework.
- If places are capped, suppliers cannot simply “roll over” and must be reassessed.
Under Section 49(5), an authority may assess an existing supplier by reference to a previous tender or the current tender. This creates two practical models: requiring refreshed tenders, or reassessing earlier submissions alongside new entrants.
Although Technical Guidance (paragraph 41) suggests suppliers may have discretion over refreshing tenders, mixed “old and new” submissions raise fairness and comparability concerns. In many cases, mandating updated tenders may be the more robust approach.
5. What must be included in assessment summaries for multi-supplier frameworks?
Section 50(4) requires an Assessment Summary before entering into a framework, including information about the authority’s assessment of the tender and (if different) the “most advantageous tender” (MAT).
The Act does not expressly address how this applies where multiple suppliers are appointed. The definition of MAT in Section 19 refers to the tender that best satisfies the authority’s requirements and award criteria.
The Technical Guidance on Assessment Summaries (paragraph 43) suggests authorities may use the lowest-scoring successful tender as the relevant benchmark. However, as guidance cannot override the Act, authorities should exercise caution and ensure they are comfortable that their approach aligns with the statutory wording to mitigate challenge risk.
6. Who checks exclusion grounds, the framework owner or the user?
Exclusion checks arise at two stages:
- At framework establishment, Section 26 requires the authority to disregard tenders from excluded suppliers.
- At call-off stage, Section 45(6) provides that a framework must not permit the award of a contract to an excluded supplier. Technical Guidance (paragraph 62) reiterates that exclusion must be considered again before awarding a call-off.
While framework operators may monitor exclusions, the practical responsibility at call-off stage rests with the contracting authority making the award, as it cannot rely solely on historic checks.
7. What are the notice requirements for frameworks versus call-offs?
When establishing a framework, authorities must publish:
- A Tender Notice
- A Contract Award Notice
- Assessment Summaries
- Observe standstill
- A Contract Details Notice
The framework contract itself must be published (redacted as necessary) if valued above £5m. There is no requirement to set KPIs at framework establishment stage.
For call-offs, only a Contract Award Notice and Contract Details Notice are mandatory (plus publication of the contract if over £5m). Standstill and Assessment Summaries are voluntary. However, KPIs must be set for call-offs over £5m, together with the monitoring and reporting obligations under Section 71.
8. Must call-offs be included in pipeline notices?
Call-offs count toward the £100m threshold for triggering the requirement to publish a Section 93 Pipeline Notice.
They do not need to be individually listed in the pipeline notice, although Technical Guidance suggests that including them may be considered good practice.
9. Is there a minimum standstill between a transparency notice and contract award?
The Act does not prescribe a minimum period between publication of a Transparency Notice (Section 44) and a Contract Award Notice (Section 50).
Technical Guidance (paragraph 75) confirms that a Contract Award Notice may be published at any time after the Transparency Notice. Early publication can avoid unnecessary delay, provided the notice accurately reflects the final contract, otherwise re-publication and a fresh standstill may be required.
Authorities should also be aware that a supplier’s Unique Identifier must be included in the Transparency Notice, which can cause delay if registration has not yet occurred.
10. Can Conditions of Participation be scored?
Yes. Conditions of Participation under Section 22(2) may be assessed on a pass/fail basis or by reference to a minimum score threshold, provided this is clearly set out in the tender documents.
For example, financial capacity assessments may use a balanced scorecard across multiple metrics, with a minimum aggregate score required.
What remains clear is that a supplier failing to meet the required threshold cannot be awarded the contract.
11. When should Conditions of Participation be assessed in an open procedure?
There is procedural flexibility. Technical Guidance on Competitive Tendering Procedures (paragraphs 37- 39) confirms that authorities may:
- Assess Conditions of Participation alongside tenders; or
- Evaluate tenders first and assess Conditions of Participation only for the supplier submitting the most advantageous tender.
This aligns with Sections 19 and 22, which require authorities to disregard tenders from suppliers that do not satisfy Conditions of Participation before award, but do not prescribe when the assessment must occur.
12. What flexibility applies to below-threshold contracts?
Below-threshold contracts are governed by Part 6 of the Act and are not “covered procurements”.
Authorities may:
- Assess technical ability to ensure contractual minimum standards are met (provided participation is not improperly restricted under Section 85);
- Direct award, including on urgency grounds;
- Consider (but are not required to apply) the debarment list (see Debarment Guidance, paragraph 19);
- Publish a Below Threshold Tender Notice where advertising, and a Contract Details Notice above £12,000 (central government) or £30,000 (sub-central authorities).
Authorities must also avoid discrimination (Section 90) and have regard to the National Procurement Policy Statement or Wales Procurement Policy Statement (Sections 13 and 14).
Where can I learn more?
If any of these areas have presented challenges for your organisation, we encourage you to complete our short poll and join us at the March webinar to explore practical solutions in more detail:
ProAct 23
Over the past year, our ProAct portal has supported clients with real-time guidance on the practical application of the Act, helping authorities navigate areas of uncertainty with confidence. If you’d like to learn more about how ProAct can help you, visit our hub.
