For any procurement falling under the Procurement Act 2023 (PA 23) there are only two competitive tendering procedures – the open procedure and the competitive flexible procedure. 

In this Procurement UnpACked, we look at what the open procedure is, how it operates and when it is an appropriate choice. 

The open procedure

The open procedure is a single-stage process in which any interested supplier may submit a tender. The tender notice is published with all procurement documents and interested suppliers provide a single tender response addressing conditions of participation and their bid back against the award criteria requirements. A contracting authority can modify the terms of an open procedure until the tender deadline. The contracting authority must republish the tender notice and tender documents affected by modifications and any revision of timescales for submissions.  

It can be a swift process, particularly as there is no negotiation involved. The minimum timescale for a supplier to submit a tender is 25 days when tenders can be submitted by electronic means. It is further reduced to 10 days where (i) a qualifying planned procurement notice was published or (ii) for reasons of urgency the minimum period is impractical. The actual time limit used needs to be carefully considered and contracting authorities should have regard to the principles set out in section 54(1).

Contracting authorities must first consider whether any tender submitted is from an excluded or excludable supplier and then disregard any tender that is excluded at that point.

The open procedure under the PA 23 operates in substantively the same way as the equivalent procedure under the PCR 2015. Contracting authorities will be able to utilise their previous experience under the PCR 2015 to good effect but will need to factor in the new requirements generally including the notice requirements. 

The open procedure operates as follows:

Choosing the open procedure

The open procedure cannot be used where the contracting authority wishes to reduce the numbers to submit a tender, where it is procuring through a dynamic market or where it is procuring a reserved contract.

Any decision on the procedure to follow needs to be proportionate regarding the nature, complexity and cost of the contract to be awarded.  With that in mind, the open procedure:

• Promotes competition which increases the chance of receiving a better bid and is conducive to the participation of small and medium enterprises. It is more suitable for procuring simple works, services and supplies where clear specifications can be developed at the start and where contracting authorities consider there may be a limited pool of potential suppliers.
• Is less suitable for complex procurement or where many tenders are anticipated as it increases administrative costs for evaluating the tenders. Some potential suppliers may be discouraged from incurring the costs of preparing a tender submission if they perceive a low chance of success.

Therefore, in choosing an open procedure a contracting authority should consider (i) the expected level of participation (ii) expected tendering costs (iii) availability of time and. (iv) the nature, complexity and value of the public contract.

For more information

For more information on the open procedure, please contact Priya Kale or Alex Lawrence.