What is the Competitive Flexible Procedure?

The new Procurement Act 2023, which goes live today, introduces significant changes to the way the public sector procures, with the aim of improving the effectiveness and transparency of public sector procurement in the UK.

One of the key changes relates to the procurement procedures which can be used for undertaking competitive procurement. The complex, rigid competitive procurement processes of the Public Contracts Regulations 2015 (PCR 2015) have been replaced under the new Act by just two methods of competitive procurement:

1. The ‘Open Procedure’ which is a single-stage procurement where you are unable to restrict who can submit a tender. This is similar to the open procedure under PCR 2015 and is suitable for simple requirements where the specification is fully defined upfront, and tenders can easily be assessed based on a single submission.
2. The ‘Competitive Flexible’ procedure, which replaces a host of various competitive procurement procedures under PCR 2015 with a simple, flexible route to market, suitable for all range of competitive procedures, from simply limiting numbers of suppliers invited to tender, to managing complex and innovative procurements with detailed dialogue and negotiation.

The Competitive Flexible Procedure

The competitive flexible procedure moves away from the approach of strictly regulating what stages you can include in a procurement and instead allows you to maximise flexibility in the design of your procurement process and tailor the stages to your specific requirements.

Any number of stages and processes can be included in a competitive flexible procedure provided they are proportionate and clearly defined upfront in the tender notice and procurement documentation, maintaining fairness and transparency for suppliers. For example, this could include things such as interim assessments, presentations, negotiations, audits, and preferred supplier stages. The decision on which stages to include and when can be fully tailored to your requirements, allowing you to ensure efficiency, transparency, and best value in your procurement activity.

Refining Award Criteria

The competitive flexible procedure also includes a significant new advantage as it allows you to refine award criteria during your procurement process, provided that:

• The intention to do so is stated in the tender notice and documentation;
• The refinements do not affect which suppliers progress through earlier stages;
• No new themes are introduced, and the contract’s nature remains unchanged; and
• The invitation for final tenders has not yet been issued.

When undertaken compliantly, refining award criteria during a procurement can deliver significant benefits in your procurement activity. It can allow you to adapt your procurement activity to evolving market conditions and changing requirements, as well as ensure criteria reduce any barriers to small and medium-sized enterprises, encouraging a diverse and competitive supplier market.

Being fully transparent about any refined award criteria also allows suppliers to tailor their bids to match your evolving requirements, ensuring they propose optimal solutions based on your specific needs. This helps you to ensure the process results in the most advantageous tender being awarded, rather than inflexible evaluation criteria obstructing optimal procurement outcomes.

Procurement Outcomes from the Competitive Flexible Procedure

By allowing customised procurement procedures and refinement of award criteria, the competitive flexible procedure can ensure your procurement activities remain efficient, compliant, and strategically beneficial, delivering better value for money and outcomes for your procurement activity overall when implemented effectively.

However, getting the most out of the competitive flexible procedure and effectively implementing the new Act is a new challenge for contracting authorities at a time where budgets are extremely tight and procurement resource is limited, especially given the notable change in regulation and processes.

Our expert procurement consultants are on hand to support you with your procurement activity under the new Act, both via our consultancy service for advice and resource capacity support, as well as through our full tender management service, delivering hands on compliant tender management services under the new regulations. For more information, please email contact@place-group.com