Navigating the complexities of The Procurement Act 2023 (TPA2023) can be daunting for schools and other public sector organisations. Understanding the various stages of the tender process under these regulations is crucial to ensure compliance and achieve the best outcomes for your school or Trust. Under the new legislation, the most common procedure likely to be used by schools is the Competitive Flexible Procedure.
The TPA 2023 offers a new approach to procurement. Under the old Public Contracts Regulations 2015 there were six different procurement processes. The TPA2023 distills these down to just three. The Open Procedure (pretty much the same as the old open procedure under the PCR 2015), Direct Award (as the name suggests and only to be used in limited and justifiable circumstances) and the Competitive Flexible Procedure (CFP). Under the Competitive Flexible Procedure the legislation allows us to essentially design our own selection and award processes from scratch (as long as we follow the objectives and timescales prescribed by the TPA2023).
As the legislation has only just gone live, most organisations are choosing to run processes in the same way as the old Restricted Procedure was delivered under the PCR2015. This is totally acceptable under the new regulations. As time goes on organisations will look to use the flexibilities and opportunities offered by the new CFP but, for the time being, many feel it’s important to stick to a process they know will work and will be compliant with the new legislation.
Here’s a step-by-step guide to understanding how we will tackle a TPA2023 Competitive Flexible Procedure tender process[1]:
Stage 1: Plan and Prepare
Once you have identified that you need to retender a service and that it needs to be TPA compliant, then you will need to plan your tender. Considerations include staff workloads, school holiday periods, site visit availability, and minimum requirements for compliant tenders.
Serve notice to your incumbent provider if required, and gather information on current service provision and desired new services. Be mindful of TUPE requirements and any staff in the LGPS, as this information is essential for bidders.
Stage 2: Tender Document Creation
You and your team will need to develop the following tender documents:
- Memorandum of Information or Scope, outlining your requirements.
- Procurement Specific Questionnaire, including any questions mandated by legislation.
- Invitation to Tender, detailing the service expectations and associated costs.
- Technical Specification or Statement of Requirements, providing detailed technical or service requirements.
- Legal Agreement (contract) for the new service, ensuring all bidders operate on an ‘equal treatment’ basis regarding terms and conditions.
Ensure that both the Procurement Specific Questionnaire and Invitation to Tender clearly set out the evaluation criteria and scoring methodology.
Stage 3: Tender Notice (UK4) and Procurement Specific Questionnaire Stage
Once your tender documents are ready, publish the Tender Notice advising bidders of the opportunity on the Find a Tender Service via the new Central Digital Platform. Accompanying documentation must be freely accessible to potential bidders, who can review the documents, ask clarification questions, and submit their responses to the Procurement Specific Questionnaire. This stage must remain open for at least 25 days to comply with the Regulations.
Stage 4: Procurement Specific Questionnaire Scoring
After the submission deadline, evaluate and score responses according to the established criteria. Shortlist suppliers based on scores, typically we recommend five as an optimum number, though this may vary. Provide feedback to unsuccessful bidders.
Stage 5: Invitation To Tender Stage
Shortlisted bidders are invited to submit comprehensive proposals detailing how they intend to meet your requirements, along with a breakdown of anticipated costs. This stage is critical for assessing each bidder’s capability to deliver the required services effectively.
Stage 6: Site Visit
If appropriate, arrange a site visit early in the ITT stage to allow bidders to understand the specific environment and needs of the school(s).
Stage 7: Invitation to Tender Scoring
Review and score the received proposals in line with the established evaluation criteria after the ITT deadline.
Stage 8: Presentation Day
Invite bidders to a Presentation Day to showcase their proposals and answer questions, which may lead to moderations to the scoring. If you have detailed it in your Contract Notice you can, if you wish, reduce the number of bidders shortlisted to presentation. We usually recommend three.
Stage 9: Decision and Contract Award Notice (UK6)
Award the contract to the highest-scoring bidder, informing unsuccessful bidders and providing detailed feedback. Issue each bidder with an Assessment Summary followed by the Contract Award Notice, triggering the 8 working-day standstill period for challenges.
Stage 10: Standstill Period
During this period, bidders can review feedback and challenge the award legally if there is evidence of regulatory breaches. Seek legal advice if necessary.
Stage 11: Contract
At this point the legal agreement needs to be signed.
Stage 12: Contract Details Notice (UK7)
Best practice is to publish this within 30 days (or 120 days for a Light Touch Regime contract) from when you’ve actually signed the contract. The definition of what it means for a contracting authority to enter into a contract is not set out in the Act or the regulations. It is suggested that it is the point when a legally binding contract comes into effect, but this is for the contracting authority to determine the relevant date based on the circumstances.
Stage 13: Procurement Audit Report
Document the entire procurement process, including evaluations and decisions, for record-keeping, future reference, and transparency.
It’s also important to note that the new legislation covers the whole lifecycle of the procurement so there are now some actions and new notices you will need to undertake and publish such as a Contract Performance Notice (UK9) for KPI scores for contracts valued over £5m or a Contract Termination Notice (UK11) for when a contract is terminated.
By following these structured stages, schools, academies and Trusts can navigate the TPA2023 tender process effectively, ensuring compliance, transparency, and optimal outcomes for their tender processes.
[1] IMPORTANT this guide is a very high-level summary of one possible process and is not intended to be a detailed and/or comprehensive explanation.
