31st Jan 2014

There is some uncertainty around Direct Awards when using a framework agreement, we would like to clarify the legal view on this method of using framework agreements. We have sought legal clarification and I can now advise that the correct way to make a direct award is to use the scores from the original tender exercise and award to the highest scoring supplier. If they cannot fulfill your requirement then you should move on to the next highest scoring supplier. This should include all award criteria, not just price.

When making a direct award there is provision to make minor amendments to the weighting of each criterion but this should not be more than 5% - so for example if you have a weighting of 10% you can move it between 9.5% and 10.5% (0.5% being 5% of 10). Any variation of more than 5% could be considered 'material', which would trigger the Pressetext case ruling – material changes can mean that you are no longer using the framework agreement and have in fact created a new contract with new conditions.

Please see below extract Regulation 19 of the Public Contracts Regulations:

(7) Where the contracting authority concludes a framework agreement with more than one economic operator, a specific contract may be awarded—

(a)by application of the terms laid down in the framework agreement without re-opening competition; or

(b)where not all the terms of the proposed contract are laid down in the framework agreement, by re-opening competition between the economic operators which are parties to that framework agreement and which are capable of performing the proposed contract in accordance with paragraphs (8) and (9).

It is also worth noting that you cannot bring new criterion into your exercise, you can only use the original award criterion

To summarise, it is our view that in order to mitigate risk of challenge we would recommend that members either conduct a mini competition (ensuring all capable suppliers are invited to participate) or they go to the highest scoring supplier from the original tender exercise.

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