What is the competitive flexible procedure and how will it work for public sector buyers?

The competitive flexible procedure has been introduced by the Procurement Act 2023 to offer public sector buyers flexibility and choice in how they run their procurements.

What is the competitive flexible procedure?

The competitive flexible procedure (CFP) is a new way to run a procurement through competition. It is designed to give you more opportunity and choice in how you purchase the goods and services you need.

The CFP consolidates the various tendering processes available under the previous procurement regulations into a single adjustable system. Unlike other procedures which follow set stages and timelines, there is no fixed template for this process and it is largely dependent on your particular requirements and preferences.

You can instead design a bespoke single or multi-stage procurement process to meet your exact needs.

How does the competitive flexible procedure benefit public sector buyers?

The Procurement Act has shifted the focus under the previous regulations on achieving the “Most Economically Advantageous Tender” to achieving simply the “Most Advantageous Tender”. This means you have greater freedom to consider the wider benefits a contract will achieve, not just its price.

The CFP gives you the flexibility to design a specific process to suit your own goals and access new capabilities, such as the chance to negotiate with suppliers on their bids.

This allows you the opportunity to focus on getting the best solution and encouraging innovation, as well as being able to maximise additional aspects of bids such as social value.

This also means the process is scalable to suit each individual procurement. You can align it to the size of the contract or the particular goods, products or services you are buying.

For large purchases, or those involving complex goods and services, you can use a more detailed and comprehensive process. For smaller or lower complexity purchases, you can use a quicker and simpler one.

Being able to design the process to fit the market in question can also help remove participation barriers and attract a more diverse range of suppliers, including small and medium sized enterprises, and voluntary, community and social enterprises.

What can buyers decide under the competitive flexible procedure?

The flexible nature of the CFP can mean a lot of variation in the process you ultimately use, which could include (but is not limited to):

• limiting or expanding the number of stages in the process depending on the complexity of the procurement – a more complicated procurement might need more stages to ensure all requirements are met

• including a negotiation, dialogue or a demonstration stage where you can request adjustments to a supplier’s bid or ask for a presentation of their offering
• conducting site visits with suppliers
• shortening or lengthening the timescales for various stages in the process, although each stage must still adhere to a minimum required duration – see the official guidance

While the CFP allows for flexibility in how you carry out your tender, you must still follow key principles including:

• equal treatment of suppliers
• transparency in decision-making
• making sure the process fits the cost and complexity of the contract

You must also set out in the tender notice how the competitive flexible procedure is to be carried out and the stages involved. This is so suppliers can make an informed decision about whether to bid.

Can I use the Competitive Flexible Procedure under a framework?

You can run a procurement using the CFP under a framework that has been awarded under the Procurement Act 2023, as long as the agreement you are using has been designed to allow it.

Frameworks and other commercial agreements are typically designed to permit specific buying processes to be used under them. This can mean an agreement only allows one style of buying process, or it can allow buyers to use one of multiple different processes.

Before planning a procurement process using the CFP, you should check that any framework you intend to use allows you to use it and be aware of any additional requirements or restrictions under a framework you will need to consider.

The CFP is the only permissible buying process you can use when running a procurement through a dynamic market.

Other articles related to the Procurement Act 2023

• What are open frameworks?
• What are dynamic markets?
• What does the National Procurement Policy Statement mean?

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