What is a competitive flexible procedure under the new Procurement Act?

The competitive flexible procedure is a procurement route introduced by the Procurement Act 2023 that allows contracting authorities in the UK to design a bespoke, multi-stage process for complex or high-value contracts where standard procedures would be too rigid. It replaces several legacy EU-derived procedures, including the competitive dialogue and competitive procedure with negotiation, under a single, more adaptable framework. The sections below answer the most important questions organisations are asking about how this procedure works in practice.

How does the competitive flexible procedure differ from open and restricted procedures?

The competitive flexible procedure differs from open and restricted procedures in that it gives contracting authorities significant discretion to design the shape, stages, and sequencing of the procurement process, rather than following a fixed statutory structure. The open and restricted procedures follow a defined format with limited flexibility, whereas the competitive flexible procedure allows authorities to negotiate, refine requirements, and run iterative stages before awarding a contract.

Under the open procedure, any supplier can submit a full tender in response to a contract notice, and the authority evaluates those tenders without negotiation or further engagement. It is straightforward and transparent, but poorly suited to contracts where requirements are complex or where dialogue with the market is needed to develop the right solution.

The restricted procedure adds a pre-qualification stage, limiting the number of suppliers invited to tender, but still does not allow negotiation once tenders are submitted. It reduces the volume of responses but offers no flexibility in how the procurement is structured.

The competitive flexible procedure, by contrast, allows authorities to engage with suppliers iteratively. Requirements can be refined, solutions explored, and submissions improved across multiple rounds. This makes it far better suited to contracts involving technology, complex services, or innovative solutions where the authority may not be able to define its requirements fully at the outset.

When should a contracting authority use the competitive flexible procedure?

A contracting authority should use the competitive flexible procedure when its needs are complex, when standard procedures do not offer sufficient flexibility, or when engagement with the market is needed to shape the final solution. It is particularly well suited to contracts where requirements cannot be fully specified in advance, where innovation is sought, or where negotiation is likely to improve value for money.

Practical scenarios where this procedure is appropriate include:

• Large-scale IT or digital transformation contracts where the technical solution needs to be developed collaboratively with suppliers
• Complex outsourcing arrangements where the scope and service model benefit from supplier input
• Infrastructure or construction projects with design elements that require iterative development
• Contracts where the market is evolving and a fixed specification would risk excluding innovative approaches
• High-value arrangements where negotiation is expected to drive significant improvements in price or quality

Authorities should not default to this procedure simply because a procurement feels difficult. Where requirements are clear and the market is well understood, the open procedure will often deliver faster, more cost-effective results. The competitive flexible procedure requires more resource, more time, and more careful management, so the decision to use it should be deliberate and justified.

What stages can be included in a competitive flexible procedure?

The competitive flexible procedure can include any combination of stages that the contracting authority considers appropriate, provided the overall process is transparent and proportionate. The Procurement Act 2023 does not prescribe a fixed sequence of stages, which is precisely what makes this procedure distinctive. Authorities must set out the intended structure of the process in the tender notice and associated documentation so that suppliers understand the process they are entering.

Common stages that authorities include are:

1. Pre-qualification or selection stage: Assessing supplier capability, financial standing, and relevant experience to create a shortlist of organisations invited to participate further.
2. Initial tender or outline solution stage: Inviting shortlisted suppliers to submit initial proposals, which may be high-level rather than fully developed.
3. Dialogue or negotiation rounds: Engaging with suppliers to refine requirements, explore solutions, and improve the quality of proposals. Multiple rounds may be included.
4. Final tender stage: Inviting suppliers to submit their best and final offers based on the refined requirements.
5. Evaluation and award: Assessing final tenders against the published award criteria and awarding the contract.

Authorities may also include presentations, demonstrations, or site visits as part of the process. The key requirement is that the structure, evaluation criteria, and any minimum requirements are communicated clearly to all participants at the outset and that any changes to the process are handled transparently and consistently across all suppliers.

What are the key rules and transparency requirements under this procedure?

Under the competitive flexible procedure, contracting authorities must publish a tender notice that sets out the intended structure of the process, the award criteria, and any minimum requirements that suppliers must meet. The Procurement Act 2023 places a strong emphasis on transparency, and authorities cannot materially change the rules or criteria mid-process without risk of legal challenge.

Key obligations include:

• Publishing a clear process design: The tender notice must describe the stages, the basis for evaluation at each stage, and how suppliers will progress through the process.
• Consistent treatment of suppliers: All suppliers must be treated equally throughout. Information shared with one supplier during dialogue must be made available to all others where it would affect their ability to compete fairly.
• Protecting confidential information: Where suppliers share commercially sensitive or proprietary information during dialogue, authorities have an obligation to keep that information confidential and not disclose it to competitors.
• Maintaining audit trails: Authorities must keep clear records of decisions made at each stage, including why suppliers were eliminated and how evaluation was conducted.
• Issuing a contract award notice: Once a contract is awarded, a notice must be published within the required timeframe, and unsuccessful suppliers must be given a standstill period to challenge the decision if they believe the process was flawed.

The Procurement Act 2023 also introduced a new requirement for contracting authorities to publish a pipeline notice for larger programmes and to maintain a central digital record of procurement activity. These transparency obligations apply across all procedures, but they are particularly important in the competitive flexible procedure given the greater degree of process design discretion involved.

What are the risks of getting the competitive flexible procedure wrong?

The risks of getting the competitive flexible procedure wrong are significant and can include legal challenges from unsuccessful suppliers, contract awards being set aside, reputational damage, and delays that increase costs for the contracting authority. Because this procedure involves greater discretion than standard routes, the margin for procedural error is also greater, and any inconsistency or lack of transparency is more likely to be scrutinised.

The most common risks include:

• Poorly defined process design: If the stages, evaluation criteria, or progression rules are not clearly set out from the start, suppliers may argue they were misled or treated unfairly.
• Inconsistent treatment during dialogue: Sharing information with one supplier that gives them a competitive advantage, or allowing one supplier more opportunity to refine their proposal than others, can invalidate the process.
• Scope creep in requirements: Materially changing the specification during the process without restarting or adjusting the process appropriately can expose the authority to challenge.
• Inadequate documentation: Failure to maintain clear records of decisions and evaluations makes it difficult to defend the process if challenged.
• Underestimating resource requirements: Running a competitive flexible procedure demands significant time and expertise from the contracting authority’s procurement team. Organisations that lack that internal capacity risk making procedural errors that undermine the entire process.

Authorities should also be aware that the Procurement Act 2023 introduced new remedies available to suppliers and enhanced oversight mechanisms, meaning that poorly run procurements are more likely to be challenged and more costly to defend than under the previous regime.

How eXceeding helps with the competitive flexible procedure

eXceeding supports public sector and third sector organisations in designing and managing competitive flexible procedures that are compliant, efficient, and built to deliver genuine value. Whether you are approaching a complex procurement for the first time under the new Procurement Act or need experienced support to manage a multi-stage process, eXceeding’s consultants bring the expertise to get it right.

• Designing a compliant and proportionate process structure tailored to your specific contract requirements
• Drafting clear tender documentation that meets the transparency obligations of the Procurement Act 2023
• Managing supplier dialogue and negotiation rounds with consistency and rigour
• Providing evaluation support and maintaining the audit trails needed to defend decisions
• Offering interim procurement resource where your team needs additional capacity or specialist expertise for the duration of the process

If your organisation is preparing to run a competitive flexible procedure and wants to ensure it is done correctly, contact eXceeding today to speak with one of our procurement consultants.

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