By Sarah Foster, Katherine Calder & Victoria Fletcher
|Published 05 May 2026
Note: This article first appeared in Local Government Lawyer on 27 February 2026.
We are publishing a series of articles looking at 'The Procurement Act 2023 - one year on'. Throughout the series, we take an honest look at what has changed in procurement practice, what challenges are being considered and what is working well.
In this second article, we look at how Authorities are utilising the new flexibilities in procurement processes.
The competitive flexible procedure (CFP) gives authorities broad scope to design a process suited to their needs, provided transparency, equal treatment and the section 12 objectives are met. Authorities can incorporate presentations, site visits, workshops, demonstrations and iterative feedback more confidently than under the PCR 2015 due to explicit encouragement from the Government.
The CFP is particularly useful for iterative shaping of requirements where innovation, complexity or bespoke delivery models require market feedback and the opportunity for suppliers to demonstrate their solutions through presentations or prototypes.
Government guidance suggested authorities could turn traditional processes on their head if reasonable and appropriate in the circumstances, e.g. not checking conditions of participation until the end; filtering suppliers based on vital but limited aspects of their proposals (e.g. a demo) before asking for written tenders at all; evaluating quality and price sequentially rather than together.
Yet, despite this flexibility, we are seeing that many authorities remain cautious and continue using dialogue/negotiation‑like formats. Why is this? This hesitation usually stems from concern about transparency obligations or the risk that informal interactions could become “modifications” if not managed carefully. The threat of procurement challenge still looms large and until we see how the courts will approach the new flexibilities, the market remains cautious.
Those who have embraced CFP flexibilities report clear benefits, including more manageable bidder pools and better‑tailored solutions. For example, one local authority has designed a process with initial capability filters before issuing the PSQ to down-selected bidders. This approach helped it reduce a pool of 250 interested suppliers to 20 genuine bidders to take forward to PSQ.
Authorities may refine award criteria in a competitive flexible procedure before inviting tenders, provided the tender notice signposted the possibility of refinement and, had the refinement been made earlier in the process, it would not have allowed one or more unsuccessful suppliers to progress to the next stage.
This is particularly useful in a multi-stage competitive flexible where early dialogue may clarify requirements or authority priorities. Refinements may include:
Refinement is unlikely to extend to adding new main criteria, or new sub-criteria not associated with the main criteria, or adding or removing pass/fail tests.
Authorities should carry out an “outcome test” to check that unsuccessful suppliers would not have progressed had the refinement been made earlier, documenting the result for its audit trail. This will be easier when weightings have been changed, as it will be a simple mathematical process, but harder when questions or sub-criteria change.
Authorities may also modify the terms of the procurement:
Section 31(7) provides that the "terms" of the procurement means anything set out in a tender notice including the conditions of participation or the award criteria. This could presumably include altering the scope of the services, the technical requirements, the timelines or the procurement process/structure itself.
Award criteria can be changed under section 24 or section 31, but section 31 is wider in its application (it includes the open procedure) and appears to deal with circumstances where unforeseen modifications are required. It prohibits change in wider circumstances, including where a supplier who didn’t request to participate at all would have wanted to participate (contrast with section 24 which focuses on unsuccessful suppliers only). Reliance on section 24 requires advance planning and publication in the tender notice and is far more focused on deliberate and strategic refinement of award criteria at each stage. If authorities are changing award criteria, they need to understand under which section they do this and ensure this is recorded.
One year on, it is clear that the Act’s promised flexibilities come with practical challenges for authorities.
The new competitive flexible procedure offers meaningful opportunities to design procurements that better reflect local priorities and market realities but only where authorities maintain transparency and equal treatment.
As authorities gain experience with refining and modifying procurement documents under sections 24 and 31, a more nuanced understanding of how and when changes can be made is emerging.
Ultimately, the first year of the Act shows that its success will depend less on the legal flexibilities themselves and more on whether public bodies have the capability, confidence and governance structures to deploy them effectively.
Authors
