Procuring Light Touch Frameworks Under the Procurement Act 2023: FAQs for Commissioners and Procurement Teams.

In this article, Cat Bogoje and Lorraine Spurling take a look at some of the common questions we are asked about procuring 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.

The Past

Prior to the PA23 coming into force on 24 February 2025 local authorities commonly procured above threshold “light touch open frameworks” or “pseudo frameworks/DPS”. These arrangements allowed new providers, who hadn’t originally tendered for the framework when it was first established, to  join the framework either at any time (if it was continuously open) or at the intervals it was reopened by the authority.

Such arrangements were permitted by virtue of the authority taking advantage of the so called “light touch flexibilities” provided by the Public Contract Regulations 2015 (“PCR 2015”).

Where are we now

With the introduction of the PA23, above threshold light touch contracts were brought more fully into the scope of the legislative requirements. Notwithstanding this, the PA23 provides a number of “carve outs” that enable authorities to continue to procure light touch frameworks in “creative” ways.

The extent to which authorities can exercise their “creativity” when procuring light touch contracts has been the source of a number of FAQs, the summary responses to which are set out in this article.

Preliminary FAQs

Q1. What is a light touch contract (“LTC”)?

A LTC is a contract for one of the light touch services listed in Schedule 1 to the Procurement Regulations 2024 (“PR24”) (by reference to CPV codes) and includes: health and social, educational, cultural, hotel and restaurant, legal, prison, firefighting and rescue, security and postal services.

Light touch contracts are “special regime” contracts under the PA23 which benefit from certain exemptions or flexibilities.

A LTC, that is otherwise not an exempted contract and has a total estimated value at or above the current light touch threshold, is a public contract and therefore a “covered procurement” for the purposes of section 11 of the PA23. This means that when an authority is procuring an above threshold LTC it must have regard to the procurement objectives in section 12 of the PA23 and, subject to the specific exceptions stated throughout the PA23, must generally follow the same rules as apply to other public contracts.

Q2. What are the “light touch flexibilities” for an above threshold LTC?

The “light touch flexibilities”, include:

1. no minimum time periods for participating and tendering;
2. an additional direct award ground for “user choice” (subject to conditions);
3. permitting the inclusion of additional award criteria;
4. not having to justify in the tender notice why lots have not been used, although note that the general duty to consider using lots remains;
5. no mandatory standstill period;
6. a longer timescale to publish an LTC details notice and the contract itself (if applicable);
7. no requirement to set and publish KPIs;
8. not having to satisfy one of the permitted grounds (“safe harbours” of section 74 and Schedule 8 of the PA23 when modifying the LTC; and
9. no requirement to publish a contract change notice, the modified contract, or the modification itself.

Q3. What is a light touch framework?

Frameworks for light touch services are permitted under the PA23. A light touch framework is a framework for the future award of contracts that are wholly or mainly for the supply of light touch services.

Q4. What are our options for procuring light touch services as a framework under the PA 2023?

LTCs can be procured via:

1. A framework under section 45 of the PA23, utilising the flexibilities for LTC:

• A light touch framework is subject to the general framework rules in the PA23, but with a few exceptions:
  • The framework agreement itself does not need to include all the detailed information listed at section 45(5) about what is expected to be procured under the call-off contract, such as: (a) a description of the goods, works or services to be procured; (b) the estimated total value of the framework; (c) the term of the framework; and (d) any selection process to be used for call-offs. However, this needs to be considered in light of the PR24 and the information that is to be set out in the tender notice for the light touch framework, which may require such information to be set out.
  • A light touch framework can provide for the direct award of call-off contracts. However, the authority will need to be mindful of the section 12 procurement objectives.
  • There is no maximum term for a light touch framework.
  • The rules for setting conditions of participation under section 46 do not apply.

2. An open framework under section 49 of the PA23:

•  An open framework is “a scheme of successive frameworks awarded on substantially the same terms”;
• This allows new providers to join at designated times as each new framework in the scheme is opened. An open framework is therefore flexible to accepts new providers but is not permanently open to new providers like a dynamic market;
• When awarding the next framework within the “Open Framework” scheme, authorities must consider how providers who were successful in being appointed to the previous framework in the scheme may be awarded a place on the next framework;
• There are no specific light touch flexibilities in relation to Open Frameworks.

Q5. When can new providers join an open framework?

An open framework is procured on the basis that it consists of a “scheme” of frameworks on substantially the same terms. If a provider does not join the framework (whether because they do not apply or are unsuccessful in the procurement) when the first framework in the scheme is established, they will have the opportunity to join the framework when the next framework in the scheme of frameworks is opened/procured by the authority. Each individual framework within the scheme is closed, preventing new providers from joining until the next framework in the scheme is opened.

An open framework must be opened once in the first 3 year period and thereafter at each 5 year period. It is possible to open the framework more frequently than this, but consideration should be given to the logistical and practical implications of doing so.

Examples of possible “opening” periods for multi provider open frameworks:

Q6. When can new providers join a light touch framework?

The effect of section 9(5) of the PA23 is that a LTC includes a light touch framework, and therefore (unlike PCR 2015), the framework rules in chapter 4 of the PA23 (sections 45 to 49) apply to light touch frameworks. However, the full rules applicable to frameworks, do not apply to a light touch framework, affording authorities flexibility in how they procure frameworks for light touch services.

Neither the PA23 or the Government guidance on frameworks or LTCs expressly prohibits an authority from procuring a framework for light touch services on the basis that new providers will be permitted to join the framework during its term (a so called “Flexible Framework”). As such, there is relatively wide scope for the authority to establish a flexible framework on a basis that suits their needs.

The flexibility is though subject to the caveat that the section 12 objectives must be taken into account. Further,  the tender notice, procurement documents and framework agreement should explicitly set out when, and in what circumstances, the Flexible Framework will be opened for new providers to join.

In order to ensure transparency and equal treatment, when the Flexible Framework is “opened” the applicants should be required to meet the same conditions of participation (as applicable) and award criteria as was used to establish the Flexible Framework originally.

The authority will need to carefully consider how any existing providers appointed to the Flexible Framework may be dealt with and the impact any new providers joining may have on the award process for call-off contracts (especially where the Flexible Framework allows for direct award of call-off contracts).

Q8. What are the advantages of procuring a light touch framework rather than an open framework?

Light touch frameworks procured pursuant to section 45 of the PA23 have no maximum term. In contrast, section 49 of the PA23 applies to open frameworks for LTC in the same manner as frameworks for anything else, meaning that the open framework for LTC will be limited to the maximum 8 year term (section 49(2)(c).

A Flexible Framework for light touch services could either be continuously open to new providers to join (albeit there may be practical reasons why the authority may not wish to do so), opened at shorter intervals or opened at any time at the discretion of the authority. In contrast, an “Open Framework”, must be opened in accordance with section 49(2) (i.e. when the next successive framework within the open framework scheme is procured), meaning at least once during the first 3 years of the open framework and each period of 5 years thereafter.

Q9. Do all lots need to be procured at the time of establishing the light touch framework or can new lots be added later during the term of the framework?

Section 45(5) of the PA23 does not apply to light touch frameworks by virtue of section 45(9); therefore, it is not mandatory that the light touch framework agreement includes a description of the services to be provided under call-off contracts awarded in accordance with the framework. However, as with a number of the “flexibilities” identified in the previous answers, use of the flexibility needs to be balanced with other provisions of the PA23 that do apply, including the section12 objectives and PR24 notice requirements.

Before publishing a tender notice authorities must comply with section 18 of the PA23, which requires consideration as to whether the contract could appropriately be divided into lots and, if so, to arrange for award by reference to lots. Whilst this has not yet been tested in the courts, we interpret this to mean that the structure of the lots should be defined at the outset of the procurement process, including setting them out in the tender notice.

Our interpretation above is supported by the fact that section 21 of the PA23 requires the tender notice to provide sufficient information to allow providers to prepare a tender, including details of the goods, services, or works required, and to ensure that requirements are clear, specific, and compliant with the rules on technical specifications (section 56 which does apply to LTCs).

It should also be noted that the PA23 does not expressly provide for the addition of new lots to an existing framework agreement once it has been awarded.

There is however some flexibility in the extent of the detail of the lots required at the stage of publishing the tender notice due to the wording in Regulation18(2)(o)(iii) of the PR24 (which applies when following the open or competitive flexible procedure to procure the light touch framework) which states that the detail needs to be: “so far as it is known to the contracting authority when the tender notice is published.”

To allow the authority greater flexibility in relation to the lots, authorities may specify that different lots will commence on different dates during the term of the framework, although typically all lots will expire at the end of the framework term (i.e. lots commencing at a later date are for a shorter period).

Providers tender for, and, if successful, are appointed to, specific lots and with no guarantee that a call-off contract will be awarded under that lot. As such, whilst a lot may be included in the framework from its commencement, the lot itself does not need to be “activated” until the authority has a requirement for the services within scope of that lot, follows the call-off contract award process for that lot and awards a call-off contract.

Taking into account the PA23 and PR24 requirements, the tender notice and procurement documents for the framework should contain sufficiently clear details as to the potential scope of the framework (and therefore all lots) to enable the market to determine whether they would be interested in tendering for the framework.

Q10. For a light touch framework, if a provider has initially been unsuccessful in being awarded a place on the framework when it was first established can they re-apply to join at a later date?

This will depend on what is set out in the authority’s tender notice and procurement documents. If the framework is a light touch framework under Section.45 of the PA23 and provides that it is continually open to new providers to join, an unsuccessful provider could immediately re-apply to join the light touch framework subject to any conditions or restrictions the authority has set out in the tender notice and procurement documents. The authority may need to consider the practicalities of this if it is likely to receive a high volume of tenders for the initial establishment of the framework. Otherwise, if the light touch framework is not continually open to new joiners, the provider could tender when the authority re-opens the framework, as set out in, and subject to, any restrictions stated in the tender notice and procurement documents.

If the framework is an open framework under Section 49 of the PA23, the unsuccessful provider could tender for the next framework within the open framework (e.g. 3 years).

Q11. Is a Dynamic Market (“DM”) an alternative route for procuring LTCs instead of a framework?

A DM under the PA23 is a list of qualified providers (i.e. providers who have met the ‘conditions for membership’ of the DM) who are eligible to participate in future procurements. A DM is not a public contract (unlike a framework) but is a vehicle for the future award of public contracts. The PA23 does not provide any specific light touch flexibilities in relation to DMs.

Key features of a DM:

• it must remain open to new providers to join at any time;
• there is no limit on the number of providers who can join the DM;
• the conditions for membership of the DM cannot be modified once it is established;
• the award of contracts to providers in the DM must be done via a competitive flexible procedure, the open procedure or direct award of a contract under a DM is not permitted.

A DM would not be suitable where the authority has a need to make a direct award of a call-off contract, i.e. for very urgent need or user choice for social care contracts. A direct award in such circumstances would be outside of the DM.

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

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