Transparency is no longer described as a separate principle but is an aim now enshrined in the Procurement Act 2023 (PA 23). Contracting authorities must have regard to: 

• the importance of sharing information regarding their procurement policies and decisions under section 12(c) of the PA 23; and
• the importance of acting and being seen to act with integrity under section 12(d) of the PA 23.

This is primarily reflected in the requirement to publish notices on the central digital platform within the specified timescales under the PA 23 containing the details set out in the supplementary Procurement Regulations 2024. This note provides a summary of the main compulsory notices required during the pre-tender, tender, and contract management stages.

Pre-procurement notices

• A pipeline notice must be published by a contracting authority anticipating a total spend of over £100 million inclusive of VAT in the coming financial year. This notice should set out information about any proposed contract with an estimated value of over £2 million inclusive of VAT. 
• A preliminary market engagement notice must be published before a tender notice, if a contracting authority intends to conduct or has conducted a preliminary market engagement. Otherwise, it must set out the reasons for not doing so in the tender notice.

Tender and award stage notices

• A below threshold tender notice must be published where the contract value exceeds the relevant threshold values, and a contracting authority intends to advertise the contract to invite tenders for a below threshold procurement
• A tender notice must be published where a public contract is advertised as part of a competitive tendering exercise. This notice formally commences the procurement.
• A transparency notice must be published for direct awards under section 41 or 43 of the PA 23.
• A procurement termination notice must be published where, following a tender notice or transparency notice, a contracting authority decides not to award a contract.
• A contract award notice must be published before a contracting authority enters into a public contract, notifying the market of its intention to do so. 
• A contract details notice must be published after the contracting authority has entered into a public contract.

Practical examples

Contract management notices

• A contract performance notice must be published where:
  • KPIs have been set under the PA 23 (i.e. where the contract value exceeds £5 million inclusive of VAT); 
  • the supplier has breached a public contract and the breach results in partial termination of the contract, an award of damages or a settlement agreement; or
  • the contracting authority considers the supplier is not performing the public contract to its satisfaction, has been given proper opportunity to improve performance and has failed to do so.
• A contract change notice must be published, unless an exception applies, before a contracting authority modifies an existing public contract (or a contract which will become a public contract because of the modification).
• A contract termination notice must be published when a contract is terminated (this includes discharge, expiry, termination by any party, rescission or the contract being set aside).

Other requirements

There are also other requirements regarding providing assessment summaries to bidders, publishing a copy of the contract/modified contract, payment compliance notices, etc. 

This new transparency regime is likely to expose contracting authorities to more scrutiny and provide dissatisfied competitors with increased opportunities to legally challenge procurement decisions. As a result, contracting authorities must be thorough in gathering evidence, particularly to justify a direct award or a contract modification. In addition, in its next phase the central digital platform will allow for data analysis by commissioners and providers, as well as the Government itself, to enable a more mature public procurement community of practice to develop. 

For more information

For a conversation about the notice requirements, please contact Chanel Quigley and Priya Kale.