Procurement in a Nutshell: Open frameworks

What is an open framework?

The Procurement Act 2023 (PA 2023) introduced the concept of an open framework, offering greater flexibility compared to the traditional framework under the PCR 2015, which has been retained by the PA 2023.

An open framework is a scheme of frameworks that provides for the award of successive frameworks on substantially the same terms. This means that the scope of the open framework, award criteria and the terms and conditions should remain substantially the same; however, frameworks in the scheme can be modified as long as they are in-line with s31 PA 2023.

Open frameworks differ from traditional frameworks in the following ways:

• New suppliers can be added when the framework is reopened.
• An open framework must provide for the framework to be re-opened at least once in the first 3 years of its life and at least every 5 years thereafter, and to last a maximum of 8 years from the award of the first framework (s49(2) PA 2023). This means the initial framework in the scheme can last for a maximum of 3 years but subsequent frameworks can last for a maximum of 5 years.
• The terms of each framework in the scheme must be set out in each framework (s45(5)(e)) to ensure transparency and allow suppliers to understand how the open framework will operate.
• Section 49(2)(b) requires that an open framework must provide for the expiry of one framework on the award of the next framework in the scheme. However, section 49(3) allows contracting authorities to make a provision in the open framework, that any processes for the award of a call-off contract under the expired framework that have already commenced can continue following the expiry of that framework. Contracting authorities should make it clear if this is the case.

Patterns emerging from Find a Tender

The Tender Notices and Contract Award Notices published when the PA 2023 first came into force highlighted a number of instances where authorities had not seemingly understood the structure of an open framework. For example, one case showed a contract award notice for an open framework that stated it was for a number of years which could then be extended for a further 4 years. This approach is no compliant with the PA 2023, especially the use of the word “extension”. The re-opening of a framework is actually the award of a new framework (not the extension of an existing framework).

However, now we are further into the PA 2023’s lifespan, there seems to be a more compliant and streamlined approach to using open frameworks across different sectors. For example, ‘Find a Tender’ shows that frameworks are planning to reopen at least twice over the lifetime of the 8 year contract – for instance, in years 2 and 5 of the contract to encourage a broad range of suppliers.

For further information please contact Melanie Pears or Tim Care in our Public Sector team.