Frameworks under the Procurement Act - FAQs

Framework agreements are a useful tool for procuring common goods, services and works. However, there are some important legal and commercial considerations to ensure compliance with the correct process.

We anticipate the following questions are likely to frequently arise, and hope the answers provided by our experts at VWV give you a head start in resolving any potential issues.

If you want to call off under a framework, what do you need to consider?

• Review the list of beneficiaries who can use the framework. Framework agreements should set out a description or list the public bodies who can call off under the framework. For example, higher education institutions, academies, local authorities, all public bodies in a particular region.
• Ensure the services, works or goods you intend to procure are covered under the framework scope. A list of the relevant CPV codes can be found in the Contract or Tender Notice and supporting documentation.
• It may seem obvious, but check that the framework is still active and has not been replaced by a newer version.
• The total anticipated value of the framework must be advertised in the Contract or Tender Notice. For large value call-offs, confirm with the framework provider that there is sufficient headroom for the proposed call-off so that it does not exceed the advertised value. Framework providers should monitor and record the value of call off contracts awarded under the framework.
• Assess if  the terms and conditions are suitable, and the risk allocation is acceptable, particularly around liability. Also, determine whether there is scope to negotiate the call off terms and conditions.

Can I use existing frameworks when the Procurement Act comes into force?

You can continue to use a framework under the transitional rules until it expires or the value of the framework is exhausted, provided you have checked the points above. Both the framework and call-offs under it will be governed by the Public Contracts Regulations 2015.

What is the maximum length of a framework?

The maximum length for most frameworks is four years and that has not changed. There are some exceptions to this; longer terms may be permissible if suppliers are expected to make significant investments and can be justified. For example, equipment for school catering contracts. The Act also introduces the concept of an open framework which can run for eight years.

Can you direct award a framework?

Direct awards are possible if a direct award justification applies, such as single suppliers or switching to direct award following a failed procurement. In practice, we would expect that frameworks with multiple appointed suppliers would be awarded under a competitive tendering procedure.

Do I have to run a mini-competition to call off under the framework?

Check the rules set out for awarding call off contracts under the framework.

Directly awarding a call off contract under a framework is permitted provided the framework clearly defines the process and is objective. For example, the guidance note on Frameworks expressly permits directly awarding based on supplier rotation or highest rank. You could also make direct award subject to meeting performance measures. Direct award may not be suitable if you wish to negotiate special terms and conditions.

The process for running a mini-competition and the evaluation methodology that will be used must be clearly set out in the framework documents, but the Act has introduced greater flexibility to allow contracting authorities to consider what is important for them at the call off stage.

What happens if a supplier appointed under the framework becomes an excluded or excludable supplier?

At the call off stage, a contracting authority must check if a supplier is an excluded or excludable supplier. Where a supplier appointed under the framework subsequently becomes an excluded or excludable supplier, a framework provider is entitled to remove them from the framework.

Once I have made a decision to award a contract can I proceed to enter into the call-off contract straightaway?

Under the new rules, a Contract Award Notice must be published before entering into a call-off contract, with certain exceptions (noted at the end of the FAQs).

However, there is no obligation to observe a standstill period (in contrast to the award of a framework). This also means that assessment summaries, which replace standstill letters, will be voluntary. However, contracting authorities may still wish to provide high level feedback.

What is an open framework?

An open framework is a new concept introduced by the Act. An open framework is defined as a scheme of frameworks that provides for the award of successive frameworks on substantially the same terms. An open framework must be re-opened at least once in the first three years and every five years thereafter, with a maximum duration of eight years.

New suppliers can be added to the framework when it is opened to help promote competition, provided the framework is on substantially the same terms. This means there should be no substantial amendments to the tender or transparency notice or to the award criteria for the award of the framework.

If a framework is working well, it allows framework providers to test the market without having to tender a completely new framework.

What notices are applicable to calling off under a framework?

Pipeline Notice - inclusion of call-off contracts over £2 million is voluntary. Framework agreements fall outside the scope of contracts to be included in a pipeline notice.

Contract Award Notice - required for all call off contracts (with some exceptions for defence and security or user choice contracts which arise in a social and healthcare setting).

Contract Details Notice - these are required to provide more details on the award of the contract, including whether it was awarded via a mini competition or direct award after the contract has been entered into.

Please feel free to get in touch if you would like support and assistance on how to get ready for the Procurement Act. Contact Stephanie Rickard in our Public Sector team at 07384 251 896. Alternatively, you can fill out the form below.

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