Managing and modifying light touch frameworks under the Procurement Act 2023: FAQs for commissioners and procurement teams

Cat Bogoje and Lorraine Spurling take a look at some of the common questions we are asked about managing and modifying frameworks for light touch services under the Procurement Act 2023 (“PA23”).

As yet, there have been no cases decided under the PA23 in relation to light touch contracts or frameworks. It’s therefore uncertain how the courts may interpret and apply the PA23 in respect of these and we will update this article in the event of any developments. We’ll also be updating this article with new FAQs as they arise so please do check back or contact us.

Please also see our additional article on procuring light touch frameworks under the PA23.

FAQs on Managing and Modifying Frameworks for Light Touch Services under PA23

Q1. Is it possible to modify the value of the framework once it has been awarded?

Section 74(2) of the PA23 permits modifications to a LTC and is not subject to Section 74(1). Therefore, a modification to a LTC/light touch framework is not required to satisfy one of the permitted modification “safe harbours” of Section 74(1) of the PA23.

The authority is not required to publish a contract change notice (Section 75(6)(b)) or to publish the modification (Section 77(1) and 77(2)(a)). Therefore, the authority would be able to vary the total estimated value of the light touch framework post award without limitation, subject to consideration of the objectives set out in Section 12 of the PA23 (“Section 12 objectives”), including sharing of information for the purpose of allowing providers and others to understand the authority’s procurement policies and decisions; and acting, and being seen to act, with integrity. To note, contract award notices are to be published for above threshold call-off contracts.

As with any frameworks, the authority should monitor actual spend under the framework.  If following award of the framework, the authority considers that the value of potential call-off contracts that may be awarded under the framework (or lot) may exceed the total estimated value of the framework (or lot) as set out in the original tender notice, it should modify the framework (or lot) in advance of exceeding the total estimated value.

The total estimated value of the framework stated in the tender notice, should be a genuine and realistic estimate of the potential value of call-off contracts that may be awarded under the framework. This visibility will assist providers in determining if they are interested in tendering for the framework. Conversely, the authority should consider the implications of over-estimating the value (and therefore possible quantity of work) and the potential impact this would have on SMEs (i.e. if the increased value means they will not have sufficient turnover to satisfy the financial standing requirements to join the framework and/or the risk of the high value submitting a tender).

The authority should, taking into account the Section 12 objectives consider, as far as possible (a) when establishing the framework what the potential variation in the total estimated value could potentially be in future; and (b) at the time of considering a modification to increase the value, whether the change in the total estimated value would have attracted any other providers who would have wished to participate and tender for the framework.

Q2. What does an authority need to consider when re-opening a light touch framework/open framework?

The issues to consider when either re-opening a light touch “flexible framework (under Section.45 of the PA23) and procuring the next framework within the open framework (under Section 49 of the PA23) are similar and consideration is needed as to how call-off contracts will be awarded. If the framework allows for the direct award of call-off contracts, consideration will need to be given to the treatment of providers already appointed to the framework (e.g. if direct award is based on ranking of providers’ overall tender score). The authority will also need to consider if existing providers appointed to the framework will be able to submit new tenders or part only (e.g. pricing).

In relation to open frameworks, there are specific rules to be followed in respect of existing providers when procuring the next framework in the scheme, with the options (as set out in Section 49(4) & (5) of the PA23) being:

1. Where there is no limit to the number of providers on the Framework;

• Award the new framework to an existing provider on the basis that the provider was previously awarded a framework within the scheme (i.e. there is no requirement for the provider to submit a new tender if it does not wish to update its offer); OR
• Re-assess the existing provider’s tender relating to an earlier award of a framework within the scheme; OR
• Assess a new tender submitted by an existing provider relating to the new framework.

2. Where there is a limit to the number of providers on the Framework;

• Re-assess the existing providers tender relating to an earlier award of a framework in the scheme; OR
• Assess a new tender submitted by an existing provider relating to the new framework.

With an open framework, this is the award of successive frameworks on substantially the same terms. The option of re-assessing previous tenders opens up a number of potential issues, particularly if the reassessed score for the new framework is different to the previous score for the same tender. This is likely to be an even bigger issue if the framework restricts the number of providers and the reassessment of the previous tender means the existing provider is knocked out for the next framework.

Q3. How can call-off contracts be awarded under a light touch “flexible” framework or an Open Framework?

For either a light touch flexible framework (Section 45 of the PA23) or an open framework for light touch services (Section 49 of the PA23) call off contracts could be awarded following a direct award or further competition (mini competition) process. For light touch contracts to be awarded under the flexible framework, the criteria for the selection process could include: service user/recipient choice, their needs and proximity between the provider and service recipients for the effective and efficient supply of the services.

Section 46 of the PA23 now provides for the option for conditions of participation to be applied for a further competition process under a framework with the providers’ proposals to be assessed against some or all of the award criteria used to assess tenders for the framework which can be refined, or additional sub-criteria included. Section 46 of the PA23, however, does not apply to light touch frameworks and so there is some flexibility for authorities, but this needs to be balanced with the Section 12 objectives.

Whilst Sections 45(3) to (5) of the PA23 do not apply to a light touch framework and therefore  the framework agreement does not need to contain details about the services to be procured under call-off contracts or the selection process for call off contracts (note however the tender notice requirements of PR24), we would recommend the framework agreement clearly sets out the transparent and objective process that would be followed by the authority to award a call-off contract. This is for practical reasons and clarity for providers and authority officers (who may change over the term of the framework) managing the framework without needing to refer back to historical procurement documents and tender notices. The framework agreement, tender notice and other procurement documents will however need to be consistent.

The call-off contract itself cannot be a framework, a framework within a framework is prohibited by Section 45(8) of the PA23, which applies to a light touch framework.

Assessment summaries and standstill periods are not required but may be voluntary.

Following the direct award or mini competition process for an above threshold call-off contract, a contract award notice must be published before entering into the call-off contract followed by the contract details notice.

Catherine Bogoje is a Senior Associate and Lorraine Spurling is a Managing Associate at Sharpe Pritchard LLP.

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This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it..