Direct Award

The Procurement Act 2023 permits public bodies to bypass a competitive tender process only where a specific statutory justification applies. Section 41 provides that 'if a direct award justification applies, a contracting authority may award a public contract directly' to a supplier that is not an excluded supplier, and — in narrower circumstances involving an overriding public interest, such as protecting critical national infrastructure or defence and security operations — even to a supplier that would otherwise be excluded.

The available justifications are set out in Schedule 5 to the Act, which section 41(6) expressly cross-refers to. They include cases where 'due to a particular supplier having intellectual property rights or other exclusive rights, only that supplier can supply the goods, services or works required', where an absence of competition for technical reasons means only one supplier is capable of performing the contract, and — the classic urgency ground — where 'the goods, services or works to be supplied under the public contract are strictly necessary for reasons of extreme and unavoidable urgency'.

A contracting authority is not required to forgo all process simply because a direct award justification applies: section 41(3) allows it to 'carry out a selection process or take such other preliminary steps as it considers appropriate for the purpose of awarding a contract', and it must still consider, before making the award, whether the chosen supplier is an excludable supplier. Because direct award dispenses with open competition, it is treated as an exception requiring specific statutory justification rather than a general discretion, reflecting the Act's underlying preference for competitive tendering in public procurement.