One of the key changes the Procurement Act 2023 (PA23) has introduced is the distilling of the various procedures available under the Public Contracts Regulations 2015 (PCR) into just two: the Open procedure and the Competitive Flexible procedure (CFP). 

At its best the CFP presents an opportunity to tailor individual procurements to make them more effective and market-specific; at its most challenging it leaves the fear that any blank sheet of paper does to an author: writer’s block.

There are situations where contracting authorities must use the CFP (not the Open procedure) – including when procuring via a dynamic market, or when you want to reduce the number of tenders that are submitted.  And so grappling with the approach taken to the CFP is something that all contracting authorities will need to do – whether soon or in the future. 

With the CFP, contracting authorities have the flexibility to run their procurement as they choose, within set parameters. This might mean using this procedure to introduce bespoke elements into a procurement, including dialogue, negotiation, site visits, and/or demonstrations. The challenge this creates is how to take advantage of the flexibilities of the CFP while also achieving a consistent approach that markets can confidently engage with. 

For many, there will be no rush to design new processes under the CFP, particularly in these early days when contracting authorities and bidders alike are acclimatising to the new regime. Many contracting authorities are electing to adopt a standardised approach to ‘their’ CFP – which is, in many cases, to mirror the old restricted procedure under the PCR.  There is something to be said for the stable and reliable known processes (and what’s that saying about babies and bathwater?).  But contracting authorities do need to be alive to the changes that the PA 23 will require them to make to both processes and template documents – recognising new terminology and ensuring compliance with notices requirements, for example – even when using an approach that takes its inspiration from old PCR procedures. 

Balancing the benefits of a standardised approach for both contracting authority and bidder alike (in terms of confidence, experience, and consistency), there will be situations where a bespoke approach is the right thing, as a result of the specialist nature of the subject matter of a procurement, its strategic importance to the authority, or the value of the contract in the context of the authority’s overall spend.  This is where the flexibility of the CFP really comes into play, and contracting authorities can design one-off approaches for individual procurements that meet their needs and engage positively with the market. 

As an intermediate step, there is real benefit in a ‘plug and play’ approach to preparing your documents, using templates which include options for dialogue, negotiation, and practical elements like demonstrations and site visits, for commissioners to consider and include or discard as needed, without reinventing the wheel each time. A modular approach to the CFP and the documents that any procurement team will need to produce could allow for the best of both worlds. 

And then to get the most out of any CFP – but especially at the more bespoke end – what will become increasingly clear is the importance of preliminary market engagement.  Much as under the PCR the competitive dialogue procedure was never intended to be a way of deferring a decision about what the contracting authority wanted to procure, so it is now – the CFP can be used to negotiate with bidders and engage in dialogue, testing out different potential solutions to a problem, but it is still almost always better to put the work in upfront to identify what the contracting authority wants (as best it can) and what the market can offer. 

It is worth considering appropriate preliminary market engagement (under s16 PA 23) to better understand the market and to enable the market to better understand the contracting authority.  It’s a chance to ask direct, transparent questions about a proposed procurement or a commissioning need in a way that benefits both commissioner and bidder alike through ensuring a well-designed procurement process benefiting from a clear(er) understanding of need, affordability, practicability and value for money. 

Whether you're about to navigate the CFP for the first time, are creating template documents, or otherwise need guidance on the CFP, do speak to any of the (competitive, flexible) members of the AC procurement team.