Framework Practice Guide – a guide to the law and best practice, or a tool to promote the Government’s procurement agenda?

The Government Commercial Function has just issued a Framework Practice Guide (the Guide), which seeks to provide practical guidance on the set-up and use of frameworks. This complements rather than replaces the earlier Cabinet Office Guidance on Framework Agreements.

The Guide picks up on some of the issues we raised with the Cabinet Office when they were consulting on the framework provisions in the Green Paper which led to the Procurement Act 2023. Whilst much of the Guidance is sensible commercial advice, there are some parts of it that are clearly based on government policy rather than what the law requires.

Duplication

A major theme is the need to reduce duplication of frameworks. The Guide repeatedly encourages authorities to avoid creating frameworks where other frameworks already exist and to use the Find a Tender Service Summarised Search to identify pre-existing frameworks before setting up their own. However, there is no legal prohibition on creating new or overlapping frameworks. The decision remains one for the contracting authority, subject to value for money considerations.

Private sector operators

The Guide warns contracting authorities against the risks associated with using frameworks operated by private sector organisations through public authority ‘hosts’. It advises buyers to understand governance, liability allocation, levies, supplier management arrangements and compliance risks before using such frameworks. 

It also makes the (valid) point that levies by private sector organisations are lost to the public sector whilst those from public sector promoted frameworks stay in the public sector. However, for cash-strapped local authorities and housing providers, what is likely to matter more is the size of the levy and its effect on final prices, rather than whether it is paid to a private sector organisation or the government. 

Centralised procurement authorities

The Guide expresses a clear preference for centralised procurement authority (CPA) frameworks set up by national bodies, such as the Government Commercial Agency itself. It suggests that buyers will obtain a greater degree of assurance when using these national CPA frameworks and may face increased risk when using privately managed frameworks. 

This is not necessarily the case. We have advised clients that some ICT frameworks promoted by the Crown Commercial Service under the previous procurement rules included call-off procedures that were unlikely to comply with procurement law; a view that was shared by several members of the Procurement Lawyers Association Frameworks Agreements Working Party. 

Competition

The Guide recommends buyers should generally default to 'award with competition' and use ‘award without competition’ only in limited circumstances. However, there is no such requirement under the Procurement Act 2023, with both call-off options being equally available for contracting authorities.

The Guide says that there is more flexibility over how call-offs are structured under the Procurement Act 2023 than under previous legislation. Whilst we agree that Conditions of Participation can now be used, we do not agree that technical demonstrations, product trials, or things like interviews or site visits could not have been used under the Public Contracts Regulations 2015.

Neutral vendor frameworks

One glaring omission from the Guide is any advice on the issue of ‘neutral vendor frameworks’. These are frameworks where there is a single supplier who will subcontract the provision of the works, service or goods to whichever organisation the contracting authority specifies. The ‘neutral vendor’ adds a mark-up to the price from that subcontractor, as the price for their acting as ‘neutral vendor’. We would have expected to see some comment on the legality of these arrangements. 

Summary

Overall, the Guide stresses that responsibility for lawful procurement remains with the contracting authority. Buyers are encouraged to undertake due diligence on the framework, understand the governing legal regime, manage call-off competitions properly, monitor supplier performance and comply with transparency requirements. This is sound advice. 

Some of the other statements in the Guide should be treated with a little more caution and their guidance followed only when this is appropriate to the specific procurement being undertaken. 

If the Guide results in contracting authorities thinking more carefully before deciding to use a particular framework, though, then it will have served a useful purpose.

Please get in touch if you need further advice or support.