03 May 2024

Planning stage

The PA23 intends to consolidate and streamline the current procurement regulatory framework, which is currently based on legacy EU law, and in doing so simplify the law to better meet the UK’s needs.

This article, which is part of a series of deep dives into the new legal regime will focus on the procurement procedures that are available under the PA23.

Competitive procurement procedures

The procurement procedures available under the existing law are well-understood: contracting authorities can (generally) choose between five procedures: the open procedure, the restricted procedure, the competitive procedure with negotiation, the competitive dialogue procedure, and the innovation partnership procedure.

Rather than setting out a similar series of available procedures, the PA23 instead requires contracts to be awarded following a “competitive tendering procedure”. This is described as:

  • a single-stage tendering procedure without a restriction on who can submit tenders (an “open procedure”), or
  • another competitive tendering procedure that the contracting authority consider appropriate for the purpose of awarding a contract (a “competitive flexible procedure”).

The key message here is that even though there are now only two procurement procedures named in PA23, in practice there is greater scope than before to design a procurement process to fit the specific procurement in question.

Whilst contracting authorities may have greater flexibility, that does not necessarily mean that each new procurement procedure will have a unique structure. Contracting authorities may feel more comfortable with competitive flexible procedures that reflect one of the already familiar procedures under the existing rules. Certainly, whilst the PA23 is in its infancy, replicating or continuing existing practices may represent an efficient approach. However, this additional scope given to contracting authorities may result in more bespoke procedures over time, developed with the working practices of an authority in mind and ensuring compatibility with the technical requirements of a project. 

Where a contracting authority runs a competitive tendering process it must publish a tender notice (along with associated tender documents) to invite suppliers to submit a tender. Tender notices will also need to contain certain information which will be set out in regulations which are awaited.

Direct award

As under the existing regime, contracting authorities may directly award contracts without a competitive process in certain specified circumstances, although a contracting authority may not directly award to an excluded supplier unless there is an overriding public interest in doing so (e.g. the direct award is necessary to construct, maintain or operate critical national infrastructure). Under the new Act direct awards may be made:

  • where it is necessary to protect life (subject to further regulations);
  • for the procurement of prototypes or novel goods or services (as defined in the Act) to a limited scale of production;
  • where there is only one supplier in the market that is capable of delivering the requirement;
  • where the requirement is for additional goods, works or services where use of another provider would be incompatible with existing goods, works or services;
  • extreme urgency; and
  • for defence requirements where the contract relates to the supply of air or maritime transport deployed outside the UK, or where no reasonable supplier would be able to guarantee that the tender terms would remain in effect for 10 days post submission.

Of these direct award powers, there is considerable overlap with the existing provisions within the PCR. The power to make a direct award to “protect life” is new however. For the other direct award powers there is some adjustment of the language and over time, we will see in practice whether this expands the scope to use these powers in specific circumstances.

Dynamic Markets

“Dynamic market” is the new names for what we currently refer to as a “dynamic purchasing system” (or “DPS”). The changes under the new Act are minimal. A dynamic market, just like a DPS, is designed to be used as a mechanism for repeat procurements. Unlike a framework agreement, a dynamic market is open for applications throughout its term and there is no limit to the number of applicants that can be admitted. Unlike existing dynamic purchasing systems under the PCR 2015, there is no restriction on the use of a dynamic market to commonly used, commoditised goods. Now, by law, a dynamic market can be used for any type of procurement , but they will naturally lend themselves to be suitable to the same type of repeat procurements that DPS have been used for in the past. 

Contracting authorities may set conditions for membership of the dynamic market, so long as it is a proportionate means of ensuring that members have the legal and financial capacity, and the technical ability to perform the contracts.

There are a number of notice requirements that contracting authorities will need to comply with where a dynamic market is established, which will apply when establishing the market, modifying or ending the market.


The PA23 retains the existing ability for public contracts to be awarded in accordance with a framework.

Where a framework is to be used, contracting authorities can only award an agreement under it following a competitive selection process unless:

  • there is only one supplier who is party to the framework, or
  • the framework sets out core terms of the public contract and an objective mechanism for supplier selection.

Frameworks must not exceed four years (or eight years for defence or utilities frameworks), unless the contracting authority considers that the nature of the goods, service or works to be supplied under it warrant a longer period.

The PA23 introduces a new concept of ”open” frameworks, i.e. frameworks which provides for the award of successive frameworks on substantially the same terms. Where a contracting authority uses an open framework it must provide for the award of a framework at least once during:

  • the period of three years following the award of the first framework in the scheme, and
  • each period of five years following award of the second framework.

How can we help?

We will be releasing further updates on other aspects of the PA23 shortly and holding workshops on the new regime throughout 2024. Please contact Laura Wisdom or another member of our procurement team if you would like to receive updates, including if you are interested in tailored workshops on issues specific to your organisation. 

Read previous articles in the series here >>>

Key contact

Headshot of Laura Wisdom

Laura Wisdom Partner

  • Public Sector
  • Defence
  • Procurement

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