Procurement Act 2023 – A Guide for Suppliers

Background information

As a supplier to the public sector, you will be participating in tenders which are governed by public sector procurement regulations.  Our members, primarily within the education sector fall under this umbrella. You are probable familiar with the current procurement landscape – the Public Contracts Regulations 2015 and the Social Value Act 2012 to name but two elements of regulation. You are probably also familiar with Contracts Finder and the Find a Tender Service replacement for the pre-Brexit OJEU.

This all changed on 24^th February 2025 when the Procurement Act 2023 (the Act) came into force. The Act is supported by additional regulations and Cabinet Office guidance/systems but the wording of the Act itself will form the basis of procurement regulation from that date. 

In this update, CPC is providing an overview of the changes for our framework suppliers and prospective suppliers. By preparing for tendering under the Procurement Act, suppliers will be better able to tender for our frameworks when renewed or introduced, and for the multitude of mini competitions our members undertake, calling off our frameworks for their contract requirements. It is in both our interest as a buying organisation, and your interest as a supplier, to improve your capability for participating in public sector tenders.

Schools Exemption

Before we look at what has or has not changed under the Procurement Act, just a short note about the Schools Exemption.  This exemption provides for “Schools” (a generic term covering most institutions from schools and multi-academy trusts through to FE colleges) to be exempted from complying with the Act, when tendering their requirements for lower value contracts (those below the thresholds set out below).  Our guidance is related to our support for the education sector, so takes this exemption into account.  The exemption does not prevent schools, MATs and colleges from calling off frameworks for below-threshold requirements, something which we will continue to encourage from a value for money perspective.  It is worth being aware of this exemption, as you may see it referenced when dealing with buyers in the education sector – but it does not impact on you as a supplier.

Contracting Authorities 

You’ll see the phrase Contracting Authority referenced throughout the Act and surrounding guidance.  CPC is a Contracting Authority, as are all of CPC’s member institutions.  It is the formal name for a public sector buyer.  Throughout this guidance, we will refer to ‘buyers’, as it is easier to comprehend. 

Twin Tracking

Whilst the Act replaced the existing Regulations on 24^th February 2025, any frameworks or contracts established under the current regulations will still be valid and operational, and that includes any new contracts awarded though pre-established frameworks. For a few years, both sets of rules will apply separately to contracts which you might be invited to tender for.  The buyer should make it clear which set of rules applies.

What’s ‘Business as Usual’?

Public sector expenditure is governed by the key pillars of transparency, equal treatment and proportionality.  That’s the basis of the current Regulations and is no different now the Act has come into force.  What the Act does, is reinforce these three objectives in a more overt manner, and later in this update, we will explore what this means for our suppliers when we look at what’s new.

So, what remains the same under the new regime?

For a start, all your existing contracts and appointments to frameworks.  These contracts and frameworks will be managed in accordance with the existing regulations until they expire. Importantly, any new call off contracts from frameworks set up under the current regulations – even if those call off contracts are not awarded until towards the end of the framework’s period of operation (which could feasibly be as late as August 2029).

Electronic tendering has been mandated across the public sector for several years.  You will be used to having to be registered on eSender/eProcurement platforms such as MultiQuote, Intend, Proactis and the like. All these portal providers are liaising with the Government to ensure that their portals will work seamlessly.  You will need to continue to make sure that your contact details on these portals are maintained, as you will ensure that you are invited to participate in relevant tender opportunities. This is discussed in more detail later in this update when we look at some top tips for tendering.  Buyers are obliged to use electronic tendering for all tendering activity, albeit that low value requests for quotation can still happen via more traditional methods such as direct emails to/from the buyer.

The thresholds which trigger wider public sector full compliance with the Act remain the same. These are separately updated on the 1^st of January of even dated years. A quick reminder of the procurement thresholds for non-central government buyers (which the wider education sector falls into):

Supplies and Services: £207,720.00 (incl. VAT)

Light Touch Regime: £663,540.00 (incl. VAT)

Works: £5,193,000.00 (incl. VAT)

What do thresholds mean in practice?  Essentially, above these thresholds, buyers must comply (in full) with procurement regulation.  Below these thresholds, the buyer has more leeway to source requirements via closed tenders/quotes which exclude all but the selected suppliers from competition. Again, in top tips for tendering, later in this update, we give some pointers about this. 

Of course, sourcing requirements through existing frameworks is one way of ensuring compliance with procurement regulations, irrespective of contract value and frameworks in the format you are used to, will continue to be established under the new Act.  That’s not to say that there are other changes afoot and we will pick up on those changes when we look at what’s new. 

Similarly, the process for calling off frameworks – either by mini competition tender or by direct award to the supplier meeting the relevant criteria – is not affected.  Buyers are still able to run competitive tenders from frameworks, amongst the suppliers appointed to those frameworks.  Equally, where a framework permits direct award in prescribed circumstances, that option is still available under the new Act. 

What’s new?

Actually, quite a bit! 

Whilst you may have been oblivious to the tender processes adopted under the current regulations, there are currently several approaches that a buyer has been able to take.  For many suppliers servicing the education sector, your experience will have been to participate in either an Open Procedure or a Restricted Procedure.  What’s the difference?  The Open Procedure is a one stage tender in which suppliers are invited to submit both a Procurement Specific Questionnaire and a Tender Response, generally comprised of both qualitative and quantitative criteria.  The Procurement Specific Questionnaire is the backward-looking questionnaire that establishes a supplier’s suitability for consideration for the resulting contract or framework.  It interrogates your company, how it is managed, what its finances are like, how it complies with general business conduct, how it is suited to the instant tender, and the like.  The Restricted Procedure comprises initial submission of the Procurement Specific Questionnaire, with a ranked scoring to shortlist suppliers who are then invited to submit a tender response.  The other processes may never have been used on tenders in which you have participated.

Under the new Act, there are only two approaches that a buyer can take – the Open Procedure and a new Competitive Flexible Procedure, which effectively permits the buyer to design its own tender process (that process will still have to be fully transparent and capable of being understood by suppliers).  We think that this new process will be used in the main to replicate the former Restricted procedure that you are familiar with. 

What’s also new is that a Central Digital Platform has been rolled out. It’s two main facets are the provision of a new Find a Tender Service (replacing the current FTS and Contracts Finder services) and a ‘Tell Us Once’ supplier information portal on which suppliers must register and upload their commonly used company information that is repeatedly requested in individual tenders. To assist you, we have developed a page to provide further information on the new central digital platform, plus a downloadable pdf guide to registration, information upload and information sharing. The Government Commercial Function has issued an initial factsheet, briefly setting out the structure and intent of this new platform.

We mentioned above, the continued availability and use of frameworks, typical of the arrangements put in place by CPC through which our members can access the marketplace to call off their own contracts.  Under the Act, these are known as Closed Frameworks.  This is because an alternative framework mechanism is available, with buyers able to establish Open Frameworks.  An open framework can last up to eight years (whereas the maximum duration of a closed frameworks is four years).  During the eight-year period of an open framework, the buyer must open-up competition for places on that framework at least twice.  How will this affect you as a buyer?  If you are successfully appointed to an open framework, when that framework is reopened to competition, you will be asked to either resubmit your tender in full or elect to stand by your original tender submission.  That submission (whether new or existing) will then be evaluated against all other submissions at the point of reopening, and you may find that your tender at that time is weaker than other submissions and your appointment on that open framework comes to an end. 

Open frameworks are likely to be used where there are regular changes in the supply market, or likelihood of new entrants into the supply chain, which the buyer can take advantage of by re-evaluating submissions at appropriate times throughout the eight-year life of the framework.  Buyers will still be able to call off those frameworks in the same way as closed frameworks – by mini competition amongst appointed suppliers, or by direct award in accordance with that framework’s rules. 

For suppliers who participate in Dynamic Purchasing Systems (DPSs) set up under the 2015 Regulations, you will find that these DPSs will not be replaced when their term comes to an end.  The Act does not provide for the establishment of DPSs, instead introduces Dynamic Markets, which are not directly comparable.  Where a buyer establishes a dynamic market, suppliers will be able to apply to be appointed and must then be invited to tender for any contract awarded through that mechanism.  Applications to join the dynamic market will be similar in style and scope to existing DPSs, but there the similarity ends.

Under a DPS, appointed suppliers are invited to tender for call off contracts in a similar manner to mini competitions under a closed framework, and the contract value for individual call off contracts can be whatever the buyer requires to purchase.  At the time of such competition, only the suppliers appointed to the DPS are eligible to be invited to tender.

Under a dynamic market, the minimum value for a call off contract awarded by a buyer cannot be lower than the current supplies/services threshold (£214,904 incl. VAT).  Such call off contracts must be advertised openly to the wider supply market through the new Find a Tender Service.  Any supplier in the wider marketplace which considers that it could meet the buyer’s requirements is then afforded an opportunity of twin-tracking both a tender submission and an application to join the dynamic market through which the call off contract is being tendered.

There are two difficulties with this process for buyers.  Firstly, the resources required to manage twin-tracked applications to be appointed to the dynamic market, and with this, an inability to judge the likely number of tenders to be submitted (for which a resource to properly evaluate must be dedicated).  Secondly, the higher minimum contract value of £214,904, when evidence suggests that the majority of call off contracts from current Dynamic Purchasing Systems fall below this minimum threshold value.  Buyers have made representation to the Cabinet Office in this respect and CPC will be watching with interest, any proposals to amend the Act to address these issues, now the Act is live.  CPC uses the current DPS mechanism to enable our members to call off smaller value contracts and at the same time providing a simpler way for SMEs to enter the public sector marketplace.

The process of awarding contracts has changed for all tenders issued from 24th February 2025.  Under the old Regulations a buyer concluded its tender evaluation then wrote to the successful supplier to confirm and provided feedback to unsuccessful suppliers.  If the contract was above the relevant threshold (see earlier) the buyer commenced a ten-calendar-day standstill period (the Alcatel period for those seasoned enough to remember this case from the European Courts).  If no award challenge was received during this period, the buyer then proceeded to award the contract and issued an Award notice to let the wider business community know what it had done. 

How does this change?  Under the Act, the buyer must issue a Contract Award Notice at the point it writes to suppliers to advise success/failure of the supplier’s tender.  It must provide feedback on the relative merits of each supplier’s tender submission, including that of the successful supplier.  This will ensure that all suppliers participating in public sector tendering receive feedback, which it is hoped will enable you to improve your tender submissions, the next time you are invited to submit.  The buyer must then commence and eight-business-day standstill period if the value of the contract is above the relevant threshold.  Should it receive no challenge during this period, it is then able to award its contract and must publish a Contract Details Notice to inform the wider business community of its award.

So what?  Well, the devil is in the detail and if the contract being awarded exceeds £5million (incl. VAT), when it publishes its Contract Details Notice, the buyer must also publish a redacted copy of the contract itself.  If you are successful in bidding for a £5m+ contract, take care to consider what elements of your tender submission are either Intellectual Property or your Unique Selling Points (IP/USP).  Make sure you advise the buyer at tender submission what parts of your tender you would expect to be redacted if included in the final award of contract, or you may end up with your IP/USP shared with your business rivals. 

As part of the wider drive for transparency and effectiveness in public expenditure, buyers now also have to ensure that in contracts of £5m+, a minimum of three relevant KPIs are included.  Again, so what?  Most contracts of this value do contain KPIs.  The big difference is that during the life of a £5m+ contract, the buyer is obliged to track performance against these KPIs and publish notices at least annually, informing the wider business community of how the supplier is performing against those KPIs.  This could be embarrassing if suppliers are not hitting the minimum KPI scoring/percentages.

Social Value will also be more firmly on the buyer’s agenda.  The Government has published a new National Procurement Policy Statement (NPPS), setting out requirements for the wider public sector to address national initiatives linked to the strengthening of the UK’s economic, social and environmental wellbeing.  Provision for adherence to the new NPPS is built into the new Procurement Act.  Connected with this is a requirement within the Act for buyers to consider SME access to the public sector marketplace, with buyers asked to consider how its requirements can be structured to enable SMEs to participate and hopefully succeed in being awarded public sector contracts.

Start to consider what social value you can offer to buyers as part of your tender submission.  Public sector buyers are not looking for additional provision at a cost, they simply want to capture what you can offer as added value to support your tender.  If successfully appointed, there will be an obligation on buyers to ensure that through the life of the contract, that added value is captured.

The NPPS is split into key themes – economic, social and environmental.  This aligns with public sector policies designed to comply with the Social Value Act 2012.  Think about what your company can bring to the table in terms of economic, social and environmental added-value and start to document this in preparation for inclusion in tender submissions when requested.  Look at tailoring it to the instant tender, perhaps aligning to the buyer’s own ‘Social Value Policy’, or the specific question posed in the invitation to tender.

Social value / added value is a wide-ranging subject area.  Each invitation to tender may give some guidance as to what social value looks like to the individual buyer.  It will depend on the subject matter of the tender.  Works contracts tend to focus on apprenticeships, use of local/SME suppliers in the supply chain, sourcing sustainable materials.  Supplies and services contracts tend to focus on how the supplier can bring additional value through its own charitable activities – such as colleagues’ volunteering, ensuring sustainability in the supply chain, investing in local labour resources and skills training.  Think about what you could offer as additional support to the school/MAT/college students’ learning and life skills.  There is no limit to the creativity you can apply, just remember that whatever you promise in your tender submission, needs to be credible and deliverable if you are awarded the contract. 

Finally, the way the Government monitors public sector procurement has changed under the Act.  The Government previously ran a mystery shopper service, allowing suppliers to report instances of poor buyer tendering/award behaviour.

The Act has now established a Procurement Review Unit, to which suppliers are now able to report instances of buyer non-compliance (e.g., not properly tendering its requirements, not following the proper process for evaluation and award, not paying invoices in a prompt manner).  The PRU has more powers to intervene with buyers to ensure that the Act and any regulations surrounding it are adhered to. 

The PRU is also be responsible for managing a centralised debarment list.  This debarment list is a register accessed by buyers, detailing any supplier to the wider public sector which the Government has deemed to be unfit to be awarded a contract by a public sector buyer.  Only the nominated Minister of the Crown will be able to add suppliers to this list (and subsequently remove them, once the supplier has self-cleansed the actions which led it to be added to the list in the first instance).  There will be checks and balances in place to ensure that suppliers are not unfairly added to this register, but if a supplier is added to this debarment register, buyers at that time will not be allowed to award contracts to that supplier, must not invite tenders and must ignore applications to join contracting mechanisms from that supplier.  Whilst a buyer already in contract with a supplier subsequently added to the debarment register is not under an obligation to terminate that contract, organisations such as CPC who manage frameworks will be obliged to suspend or remove such a supplier who may be appointed to one or more of its frameworks or dynamic markets.

Notices

As a supplier, you will be interested in understanding what tendering opportunities are available to you.  The new Central Digital Platform comprising the new Find a Tender Service will be the main source of this information and the Government is making it clear that suppliers should not have to pay to access this information.  Be wary of businesses who are selling access to tender alerts.

Whilst the publication of notices is not the responsibility of suppliers, we think it is worthwhile listing the new range of notices which the Act has introduced, as you will start to see these being referenced.  In the table below, these are set out, noting which will be used by buyers in the education sector and which the Schools Exemption referenced earlier, will allow education buyers to avoid having to publish.

Key notices for suppliers are the first four in this table – as they are the notices which will alert you to potential and actual tender opportunities.  Note that the Contract Notice (advertising a live tender opportunity under the previous 2015 Regulations) is now known as a Tender Notice.

Top Tips for Tendering

There are lots of tips online for successful tendering for contract opportunities.  Here are those tips which we think are the most important.  Take these tips on board and you are more likely than not, to be in a better position for securing the contract.

Make sure the opportunity is a fit for your business at that time, and that you meet any minimum criteria for participation.  This is crucial.  Don’t waste time bidding for opportunities which either don’t fit with your business or which if you were successful, you’d be unable to properly fulfil.

Prepare your company for future tender opportunities.  This may seem simplistic, but having key information at your fingertips reduces the time needed to react to a live tender opportunity.  Build a set of documents such as:

·      Staffing Details (CVs/Pen Pictures and the like).

·      Company background data & policy documents.

·      Case studies.

·      Financial information. 

Maintain your registration on the various eSender/eProcurement platforms such as MultiQuote, which is used by CPC.  Ensure that your contact information is kept up to date and that you use a resource account email address within your company as the point of contact.  This will ensure that email alerts from the various portals on which you are registered, will be more likely to be seen than if they go to a specific person within your company.  Remember that emails going to a specific person will not be seen when that person is on holiday, taking sick leave, temporarily away from the office, or indeed has resigned and the email address is no longer in use.  

Register on the new Central Digital Platform and then make sure you regularly update the information uploaded to this platform.

Sign up for tender alerts from the new platform but think carefully before signing up to tender alert feeds from companies who charge for that service.  This information is free to access, you should not need to pay for it. 

When you register for a tender opportunity, read the tender document carefully and identify what it is asking you to submit by way of a tender response.  It is likely to require a mix of:

·      Price.

·      Responses to technical/quality questions.

·      Response to a social value question.

·      Provision of ancillary documents, such as proof of technical capabilities, insurances held, and the like. 

Answer the questions asked, not what you think should have been asked.  This may seem obvious, but experience of receiving tenders from suppliers leads us to reiterate this observation.  Similarly, make sure your response is focussed on the question and the tender which you are responding to – don’t just cut and paste a response to a similar question from an earlier tender submission.  You may find that the buyer provides guidance alongside a technical question, to assist you to focus on what the buyer expects you to include in your response.  It will not write the response for you, make sure your response covers the points provided. 

Pay attention to any word counts allocated to tender question responses.  Some buyers will cut off your response at the maximum word count and ignore any important elements of your response which fall outside the word count.  

Don’t format your tender into a glossy submission, with your company branding/format.  Save that for any presentation element, if included in a tender process.  Why?

·      You’ll inevitably miss something when transposing from the invitation to tender response form to your own response form.

·      You’ll make it more difficult for your tender to be evaluated (as buyers may have to spend time searching for the questions they asked, and your responses to those questions).

·      Buyers are looking for responses to their tender questions, and marks will not be given to the glossiness of the response submissions. 

Don’t be afraid to ask clarification questions of the buyer, during the tender period.  It is important that you make sure you understand what you are bidding for.  If, through your technical knowledge of your marketplace, you spot issues with the tender specification or pricing structure, politely raise these points with the buyer.  They will welcome genuine, knowledge-led input which will enable them to correct any mistakes in the tender documents before close of tender submissions.  After all, this will lead to better tender submissions and reduce the likelihood of post-tender or post-contract issues arising.

Don’t qualify your tender.  Buyers must evaluate tender submissions on an equal basis.  If you feel the need to qualify your tender, deal with that qualification as a tender clarification question during the tender period.

Allow yourself time to prepare your submission, and make sure your tender response is submitted on time.  Don’t underestimate the time needed once you think you have drafted the responses to the various questions that have been asked.  As part of this finalisation and review process, sense check your tender before submission:

·      Have you responded to all sections of the tender document?

·      Have you comp-checked your price submission to make sure it is accurately calculated?

·      Have you included all requested documents (policies, certificates, insurances, etc.)?

·      Have you proofread any written responses to check for technical errors or spelling mistakes?

·      Have you signed any documents requiring signature?

·      Have you allowed sufficient time to upload your response to the tender portal before the cut off time on the final date for receipt of tenders?

Learn from the feedback you receive to your tender submissions, especially when you are unsuccessful.  Don’t treat tender feedback as a sore point.  Buyers want the supply market to become better at tendering, as this inevitably leads to better tender submissions and (hopefully) better contracting outcomes.  Under the Procurement Act 2023, not only are unsuccessful tenderers entitled to written feedback, so too are successful tenderers.  Unless you score 100% in a tender evaluation process, there will always be something you should be able to glean from the feedback as to how your tender could have been improved.  Oh, and provision of written feedback is mandated to buyers, so you should not need to request it, the feedback should be automatically provided.  Just remember that buyers are unlikely to advise you of the lowest tender prices received if your tender was not the lowest price.  This is usually withheld, to maintain supplier confidentiality but you should be able to approximate the winning price in comparison to yours by reverse calculation from the percentage score awarded to your submission.

Next Steps

Firstly, keep revisiting our webpage as we will update information regarding the new Central Digital Platform / Find a Tender Service as and when we know more.  We’ll also update any links to useful information as it becomes available.

Familiarise yourself with the supplier guidance that is available here, provided by the Government Commercial Function.  The Government Commercial Function offers you the opportunity to register for update alerts, which we recommend.

In December 2024, we hosted a webinar to discuss the key elements of change under the Procurement Act. A recording is available to watch here if you missed it - you will need to login to view it.