In this Procurement on Demand, we look at the requirements under the new Procurement Act 2023 for contracting authorities to publish contract award notices (CAN), provide bidders with assessment summaries and to observe a standstill period before entering into a public contract.
A CAN under the new Act will be a notice sent to bidders who have submitted bids and had their bids assessed. CAN are separate to 'contract details notices' (CDN), which will be notices contracting authorities will be required to publish to state that the contracting authority has entered into a public contract.
Contract award notices
Section 50(1) of the new Act states that:
"Before entering into a public contract, a contracting authority must publish a contract award notice."
The requirement to publish a CAN is mandatory (given the use of 'must'). Section 50(6) of the new Act provides for only very limited exceptions to this requirement, being:
"(a) a defence and security contract awarded under a defence and security framework;
(b) a contract awarded under section 41 by reference to paragraph 15 of Schedule 5 (direct award: user choice contracts)."
So, unless awarding a defence and security contract or a user choice direct award, where a contracting authority has carried out a tendering process to identify the 'most advantageous tender' (MAT) – including a contract under a framework agreement, a contract by reference to a dynamic market, a light touch contract or any other direct award, it must publish a CAN.
Section 50(2) states that a 'contract award notice' means a notice setting out:
a) that the contracting authority intends to enter into a contract; and
b) any other information specified in regulations under section 95.
Under section 95 of the Act, an 'appropriate authority* can make regulations to provide for:
a) the form and content of notices, documents or other information to be published or provided under the Act;
b) how such notices or documents are, or information is, to be published, provided or revised.
Regulations – which would be in the form of secondary legislation – have not yet been passed. The government has consulted and it is anticipated that such secondary legislation / regulations will be published in Spring 2024. We do not therefore yet know exactly what CANs will look like, however, the government has set out a list of the information required and also explained that there will be a standard format for CAN, so they can be easily published on the new central digital platform.
We will provide further guidance on this once the regulations have been published.
Assessment summaries
Under the new Act, where a competitive tendering process has been undertaken, contracting authorities will have to issue bidders with an 'assessment summary'.
Section 50(3) of the Act states:
"Before publishing a contract award notice in respect of a contract awarded under section 19 (award following competitive tendering procedure), a contracting authority must provide an assessment summary to each supplier that submitted an assessed tender."
The definition of the term 'competitive tendering procedure' can be found at section 20(2) of the Act, and is defined as:
a) a single-stage tendering procedure without a restriction on who can submit tenders (an "open procedure"); or
b) such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the public contract.
This would suggest that assessment summaries will not be needed where the contracting authority makes a direct award (for example in special cases, to protect life etc) or awards a contract under a framework (whether by direct award or following a 'competitive selection process'). However, assessment summaries will be required for contracts awarded by reference to a dynamic market (see section 34 of the Act) and to light touch contracts (see section 23(6) of the Act).
Notably, as further explained by section 50(5), where assessment summaries are required because a competitive tendering procedure has been followed, they will only need to be provided for an 'assessed tender'. Assessment summaries will not, therefore, be needed for bids that were excluded or disqualified at any stage of the tender process before assessment.
Section 50(4) of the Act states that an assessment summary means:
",,,in relation to an assessed tender, information about the contracting authority's assessment of—
(a) the tender, and
(b) if different, the most advantageous tender submitted in respect of the contract."
No detail is provided as to what 'information' should be provided and all that can be understood from this is that, if the bidder receiving the assessment summary is not the winner, then 'information' about the winning bid must also be provided.
Conceivably only information about scores for individual quality questions, price and/or social value may need to be given. The amount of detail to be included in assessment summaries may be addressed further in secondary legislation / regulations. We will provide a further update in due course, once secondary legislation / regulations have been published in 2024.
Standstill periods
Section 51 of the new Act states that a contracting authority cannot enter into a public contract until the end of the standstill period – whether the standstill period is mandatory or is being observed voluntarily.
Standstill periods will be mandatory where a CAN is published, unless the contract falls within one of the exemptions specified as section 51(3). The exemptions are any contract that is:
a) awarded under section 41 by reference to paragraph 13 of Schedule 5 (direct award: extreme and unavoidable urgency);
b) awarded under section 41 by reference to regulations under section 42 (direct award to protect life, etc);
c) awarded under section 41 or 43 (direct award and switching to direct award) by a private utility;
d) awarded in accordance with a framework;
e) awarded by reference to a dynamic market; and
f) a light touch contract.
However, for exempted contracts, contracting authorities can choose to observe a voluntary standstill period. If a contracting authority chooses to observe a voluntary standstill period then it must be observed.
For both mandatory and voluntary standstill periods, the standstill period is eight working days beginning with the day the CAN is published, i.e. that day of publication of the CAN will be day one of eight.
This is potentially problematic – if, for example, a contracting authority issues its CAN on a weekend or bank holiday, does that also count as day one, or is day one the next working day? Contracting authorities are permitted to observe a longer period than eight working days, so, if such circumstances arise (i.e. the need to issue a CAN on a non-working day), contracting authorities may wish to specify a longer standstill period, to avoid any doubt and a potential challenge.
Two final points to note regarding standstill periods:
1. Where a contract authority modifies a contract under section 76, it may choose to observe a voluntary standstill period before entering into the contract. If a voluntary standstill period is observed it must be a minimum of eight working days.
2. If contracting authorities do not observe standstill periods in compliance with the Act's requirements, there is a risk that a challenger will be able to apply for an order that the contract be set aside (see sections 104 and section 105(1)(b)).
