PROCUREMENT
It is well documented that the regulations actively encourage contracting authorities to enter early dialogue via preliminary market engagement with contractors.
Fleur Summers
undertake – and the potential benefits and opportunities that can stem from the Act (if applied correctly) are universal. This covers not just what is mandated by the Act, but also other related elements that the public sector as a whole must have ‘regard’ to. Below are just some of the approaches that the NHS could adopt in order to truly maximise the opportunities of the Act:
Early market engagement: It is well documented that the regulations actively encourage contracting authorities to enter early dialogue via preliminary market engagement with contractors. In an industry that is facing challenges, from both a labour and skills shortage perspective, it is particularly important to engage with SMEs to support them in alleviating this. Early engagement with SMEs could also help to identify and secure more innovative and niche project solutions.
Quality over quantity: The Act includes a shift away from a most economically advantageous tender (MEAT) approach, to most advantageous tender (MAT). The implementation of this is already evident through the detail contained within the notices published since launch. In practice, this provides contracting authorities with greater ‘artistic licence’, permitting them to focus on more qualitative outputs relative to the procurement requirement in question, and also more regionalised benefits, such as local job creation and social value outcomes. Naturally, cost will always remain a major component of NHS and wider public sector procurement, but these newly prioritised qualitative benefits will also produce a wider return on investment throughout the life of the contract and beyond.
Choosing the right procedure leads to success: The Act has replaced the previous five procurement procedures with just two: ‘open’, and the ‘competitive flexible procedure’. The new competitive flexible procedure has been created to enable contracting authorities to design a procurement process that aligns to the requirements of the market. These processes could look very different across each contracting authority based on the subject matter to be procured. A competitive flexible procedure must be a multi- stage process, and in its simplistic form could replicate
a previous two-stage restricted process. Alternatively, and depending on the market and requirement, it could incorporate more stages, such as an element of dialogue or negotiation, along with the incorporation of site visits, presentations, or demonstrations. In addition, it can include interim/final assessments. As such, a competitive flexible procedure can truly be designed to align with what is being purchased. There are many different combinations that a competitive flexible procedure could take, but the main takeaway is that it is a multi-stage process, and at all times contracting authorities will need to take into consideration proportionality, and the complexity of the requirement, when designing the process. It is already evident that not just the NHS, but the wider public sector, are opting for the competitive flexible procedure when it comes to major construction and real estate procurement requirements, due to the opportunities it brings – namely being able to incorporate additional stages to the process.
The gift of greater control: Robust contract management processes and procedures are now required throughout the life of the contract. As mentioned earlier, essential performance management data must now be reported upon, including a requirement for a minimum of at least three key performance indicators (KPIs) for contracts equal to and above £5 m in value. These reporting and transparency requirements empower contracting authorities to better hold contractors to account on their KPIs – and allow contract deliverables to be tracked throughout. This is just one of many instances where the Act has sought to obtain increased transparency – without compromising the flexibilities that the public sector now have available to them.
Looking ahead These first six months of the Act have seen the both the NHS and the wider public sector sow the seeds of their formative procurement activity; soon enough we will start to see the green shoots appear. It will be interesting to see where we are on day 300, post-launch. It is also worth noting that the public sector has been asked to respond to a recent consultation exercise reflective of the post ‘go-live’ period. It will be interesting to see how that will change the direction of procurement activity once enacted.
Fleur Summers MCIPS has 20 years’ public sector experience working with contracting authorities within transport, defence, and a large local authority – holding lead roles within each, focusing on key deliverables such as Strategic Sourcing, Category Management, Supplier Relationship, and Contract Management. As an MCIPS qualified procurement professional, she has developed a breadth of category experience and expertise covering a range of procurement disciplines – including housing, construction, facilities management, property management, passenger transport, and schools PFI contracts. She has a deep
understanding of public sector procurement regulations, including the recently launched Procurement Act 2023, and harnesses this expertise to ensure procurement outcomes remain compliant while achieving optimal value for contracting authorities. As a lead member of
the Turner & Townsend UK Procurement Reform Taskforce, Fleur provides guidance and awareness to both internal colleagues and external clients.
September 2025 Health Estate Journal 31
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