What is the Competitive Flexible Procedure? (Procurement Act 2023)

The competitive flexible procedure (CFP) is one of two competitive tendering procedures introduced by the 2023 Procurement Act.

It gives contracting authorities greater freedom and flexibility by enabling them to design their own procurement process.

This article looks at what the CFP is, when contracting authorities can use it, and what the new procedure type means for buyers & suppliers to government.

Skip ahead to read about:

When should a competitive tendering procedure be used?
What is the open procedure?
What is the competitive flexible procedure?
What does this all mean?

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This article is part of a series of articles on the 2023 Procurement Act.

Head to Tussell's Procurement Act Hub for all the information and resources you need to get Procurement Act-ready.

🤔 When should a competitive tendering procedure be used?

Under the 2023 Procurement Act, contracting authorities must carry out a competitive tendering procedure before awarding most non-framework contracts.

For above-threshold contracts, this means contracting authorities have two options when it comes to the tendering procedure:

The open procedure
The competitive flexible procedure

Whichever procedure type is chosen, it can and must be commenced via publication of a tender notice.

🔑 What is the open procedure?

The open procedure is a single-stage tendering procedure that allows all interested suppliers to submit a tender.

Under the Procurement Act, buyers are no longer required to set conditions of participation (or selection criteria) when using the open procedure.

However, in instances where conditions of participation are set, and a supplier fails to meet them, the supplier must not be awarded the public contract.

Under the open procedure, all information must be provided at the point of tender and must be made available to all suppliers. This includes:

The subject matter and estimated value of the contract
How the tenders will be assessed including any conditions of participation and the criteria for awarding the contract
The timescales for both the procurement process and delivery of requirements
Any other relevant information (1)

When procuring under the open procedure, buyers must observe the following tendering periods:

25 days - where tenders are submitted by electronic means
10 days - where a qualifying planned procurement notice has been published
10 days - in a state of urgency where any other timescale is impractical

❓ What is the competitive flexible procedure?

Much like the open procedure, the competitive flexible procedure begins with a tender notice.

However, in the case of a competitive flexible procedure, the tender notice may be used to either:

invite suppliers requests to participate in the procedure; or
invite suppliers to submit their first, or only, tender

In contrast to the open procedure, the competitive flexible procedure is multi-staged.

Contracting authorities have the option to include a 'participation stage' at the beginning of the procurement process to limit the number of suppliers involved in the procurement.

This should be done by assessing suppliers against the conditions of participation and/or any other objective criteria set out in the tender notice or associated tender documents.

Thereafter, the contracting authority has the freedom to design its own procedure.

Various processes may be included within the procedure. These may include dialogues, negotiations, presentations, audits, site visits or demonstrations.

Other stages not listed above may also be added.

‘Dialogue’ refers to a discussion between the contracting authority and suppliers about any aspect of the procurement.

‘Negotiation’ is the discussion between the contracting authority and a supplier with a view to improving the content of tenders.

All and any stages in the procurement process must be assessed objectively in accordance with the award criteria.

And, all stages used in the procurement process must be clearly laid out in the original tender notice.

🔽 Limiting the number of suppliers on the competitive flexible procedure

Contracting authorities may choose to begin a competitive flexible procedure with a 'participation stage' to limit the number of participants in the procurement process.

This may be done to:

keep the procurement administratively manageable; or
increase the likelihood of suppliers being willing to tender by decreasing competition during the later stages of the procedure

By narrowing the field early, the Cabinet Office argues SMEs and new businesses stand to benefit. However, whether supplier selection during the 'participation stage' actually ends up advantaging smaller suppliers remains to be seen.

⏰ Time periods under the competitive flexible procedure

If included, the minimum time period for the 'participation stage' is 25 days - or 10 days in instances where a contracting authority considers there to be a state of urgency.

A minimum tendering period then applies to each additional 'stage' of the procurement. This minimum period is:

25 days - where tenders are submitted by electronic means and where the tender notice associated tender documents are all provided at the same time; or
10 days - where tenders are submitted by electronic means and where the tender notice and associated tender documents are not all provided at the same time; or
10 days - where a qualifying planned procurement notice has been published; or
10 days - in a state of urgency where any other timescale is impractical.

For contracting authorities that are not part of the Central Government, further reductions to tendering periods may also apply.

A tendering period may be reduced to 10 days in instances when a participation stage has been included and only pre-selected suppliers have been invited to submit a tender.

Read Tussell's in-depth social value explainer

No minimum timescale applies to tendering periods in instances where a participation stage has been included and a timescale has been agreed with those suppliers.

👻 Potential risks of the competitive flexible procedure

Some experts worry that the competitive flexible procedure opens up the possibility of a 'wild west' style procurement landscape, whereby contracting authorities are free to feature their own obscure - and potentially anti-competitive - procedures.

However, there are several guard rails in place to prevent this.

For one, to ensure competition the Cabinet Office's guidance suggests that contracting authorities should invite at least five suppliers to progress past the 'participation stage' in instances where the procedure is simple and contains no dialogue or negotiation.

Where the procedure is more complex and will include extensive dialogue or negotiation, the Cabinet Office suggests that a minimum of three suppliers should be invited to progress.

This guidance is not legally binding, however.

Additionally, contracting authorities must provide an assessment summary to suppliers that are not taken past the 'participation stage'. This will ensure suppliers know why they are not being considered for a given procurement.

It will also helps to promote transparency and accountablity.

Unfortunately, contracting authorities are not required to provide robust feedback to suppliers during other stages of the procurement process in instances where a supplier has been eliminated from the competition.

Whilst feedback is still recommended, the absence of obligation on the part of contracting authorities has been cited by experts as an area of concern.

🌅 What does this all mean?

The competitive flexible procedure gives contracting authorities more room to design their own procurement processes.

This enables public sector buyers to run procurements in a way that accounts for their organisational objective, the nature of the market, and the nuances of the problem(s) they're solving for.

However, critics of the new procedure type worry that the flexibility of the new procedure type could be its own undoing.

Either way, the competitive flexible procedure represents one of the most substantive changes brought about by the 2023 Procurement Act.

If you're worried about how the Procurement Act will affect your procurement team you are not alone.

Book a demo with the Tussell team to learn how you can start using data to de-risk your procurement process, increase social value, save time, and make smarter procurement decisions.