The Procurement (Wales) Regulations 2024

Made: 3 July 2024

Coming into force in accordance with regulation 1(2) and (3)

In accordance with section 122(10)(b), (c), (e), (h), (l), (m), (o), (q) and (r), of that Act, a draft of these Regulations has been laid before, and approved by a resolution of, Senedd Cymru.

PART 1 — Introductory

Title and coming into force

1

• (1) The title of these Regulations is the Procurement (Wales) Regulations 2024.

• (2) These Regulations, except for Part 1 and regulation 47(1) and (2), come into force at the same time at which section 11 of the Procurement Act 2023 comes into force for any purpose [^f00003].

• (3) Part 1 and regulation 47(1) and (2) come into force on the day after the day on which these Regulations are made.

Application

2

• (1) These Regulations apply to—

• (a) a contracting authority that is a devolved Welsh authority, including in relation to a procurement under a devolved Welsh procurement arrangement, and

• (b) a contracting authority that is to be treated as a devolved Welsh authority under section 111 of the Procurement Act 2023.

• (2) In this regulation—

• “devolved Welsh authority” (“awdurdod Cymreig datganoledig”) has the meaning given by section 157A of the Government of Wales Act 2006[^f00004];

• “devolved Welsh procurement arrangement” (“trefniant caffael Cymreig datganoledig”) has the meaning given in section 114(2) of the Procurement Act 2023.

Interpretation

3

In these Regulations—

• “the 2023 Act” (“Deddf 2023”) means the Procurement Act 2023;

• “contracting authority” (“awdurdod contractio”) has the meaning given by section 2(1) of the 2023 Act;

• “CPV” (“GGG”) means the Common Procurement Vocabulary as adopted by Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary[^f00005];

• “utilities contract” (“contract cyfleustodau”) has the meaning given by section 6 of the 2023 Act.

• “utility” (“cyfleustod”) has the meaning given by section 35(4) of the 2023 Act.

PART 2 — Transparency

Interpretation of Part 2

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In this Part—

• “CA 2006” (“DC 2006”) means the Companies Act 2006[^f00006];

• “alternative online system” (“system ar-lein arall”) has the meaning given by regulation 5(11);

• “appropriate authority” (“awdurdod priodol”) has the meaning given by section 123 of the 2023 Act;“associated tender document” (“dogfen dendro gysylltiedig”) has the meaning given by section 21(4) of the 2023 Act;

• “award criteria” (“meini prawf dyfarnu”) has the meaning given by section 23(1) of the 2023 Act;

• “Cabinet Office” (“Swyddfa’r Cabinet”) means the UK government department with responsibility for supporting the prime minister and Cabinet of the United Kingdom acting on behalf of the Minister for the Cabinet Office;

• “central digital platform” (“platfform digidol canolog”) means the online system established by the Minister for the Cabinet Office[^f00007];

• “competitive flexible procedure” (“gweithdrefn hyblyg gystadleuol”) has the meaning given by section 20(2)(b) of the 2023 Act;

• “competitive selection process” (“proses ddethol gystadleuol”) has the meaning given by section 46(10) of the 2023 Act;

• the “Comprehensive and Progressive Agreement for Trans-Pacific Partnership” (“Cytundeb Cynhwysfawr a Blaengar ar gyfer Partneriaeth y Môr Tawel”) means the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, signed at Santiago on 8 March 2018, including the Accession Protocol of the United Kingdom of Great Britain and Northern Ireland to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, signed at Auckland and Bandar Seri Begawan on 16 July 2023[^f00008], as amended from time to time;

• “concession contract” (“contract consesiwn”) has the meaning given by section 8 of the 2023 Act;

• “connected person” (“person cysylltiedig”) has the meaning given by paragraph 45 of Schedule 6 to the 2023 Act;

• “contract award notice” (“hysbysiad dyfarnu contract”) has the meaning given by section 50(2) of the 2023 Act;

• “contract details notice” (“hysbysiad manylion contract”) has the meaning given by section 53(2) of the 2023 Act;

• “contract subject-matter” (“pwnc y contract”) has the meaning given by regulation 15;

• “contracting authority information” (“gwybodaeth yr awdurdod contractio”) has the meaning given by regulation 14;

• “convertible contract” (“contract trosadwy”) has the meaning given by section 74(1) of the 2023 Act;

• “core supplier information” (“gwybodaeth graidd y cyflenwr”) has the meaning given by regulation 6(9);

• “dynamic market” (“marchnad ddynamig”) has the meaning given by section 34(8) of the 2023 Act;

• “dynamic market notice” (“hysbysiad marchnad ddynamig”) has the meaning given by section 39 of the 2023 Act;

• “estimated value” (“amcangyfrif o werth”) has the meaning given by section 4 of the 2023 Act;

• “excluded supplier” (“cyflenwr gwaharddedig”) has the meaning given by section 57(1) of the 2023 Act;

• “framework” (“fframwaith”) has the meaning given by section 45(2) of the 2023 Act;

• “geographical classification” (“dosbarthiad daearyddol”) has the meaning given by regulation 15(2);

• the “GPA” (“Cytundeb ar Gaffael gan Lywodraethau”) means Agreement on Government Procurement signed at Marrakesh on 15 April 1994[^f00009], as amended from time to time;

• “key performance indicators” (“dangosyddion perfformiad allweddol”) has the meaning given by section 52(4) of the 2023 Act

• “light touch contract” (“contract cyffyrddiad ysgafn”) has the meaning given by section 9 of the 2023 Act;

• “open framework” (“fframwaith agored”) has the meaning given by section 49(1) of the 2023 Act;

• “open procedure” (“gweithdrefn agored”) has the meaning given by section 20(2)(a) of the 2023 Act;

• “pipeline notice” (“hysbysiad piblinell”) has the meaning given by section 93(3) of the 2023 Act;

• “planned procurement notice” (“hysbysiad caffael arfaethedig”) has the meaning given by section 15(2) of the 2023 Act;

• “preliminary market engagement notice” (“hysbysiad ymgysylltu rhagarweiniol â’r farchnad”) has the meaning given by section 17(2) of the 2023 Act;

• “private utility” (“cyfleustod preifat”) has the meaning given by section 2(2) of the 2023 Act;

• “procurement” (“caffaeliad”) has the meaning given by section 1(1) of the 2023 Act;

• “PSC register” (“cofrestr pobl â rheolaeth sylweddol”) means the register that a company is required to keep under section 790M of the CA 2006 (duty to keep register)[^f00010];

• “public contract” (“contract cyhoeddus”) has the meaning given by section 3 of the 2023 Act;

• “public service mutual” (“cwmni cydfuddiannol gwasanaethau cyhoeddus”) has the meaning given by section 33(6) of the 2023 Act;

• “qualifying utilities dynamic market notice” (“hysbysiad marchnad ddynamig cyfleustodau cymhwysol”) has the meaning given by section 40(6) of the 2023 Act;

• “significant control” (“rheolaeth sylweddol”) has the meaning given by section 790C(2) of the CA 2006[^f00011];

• “small and medium-sized enterprise” (“menter fach a chanolig ei maint”) has the meaning given by section 123(1) of the 2023 Act;

• “special regime contract” (“contract cyfundrefn arbennig”) has the meaning given by section 10(6) of the 2023 Act;

• “supported employment provider” (“darparwr cyflogaeth â chymorth”) has the meaning given be section 32(4) of the 2023 Act;

• “tender notice” (“hysbysiad tendro”) has the meaning given by section 21(2) of the 2023 Act;

• “tendering period” (“cyfnod tendro”) has the meaning given by section 54(5) of the 2023 Act;

• “transparency notice” (“hysbysiad tryloywder”) has the meaning given by section 44(2) of the 2023 Act;

• “unavailable” (“heb fod ar gael”) means that the Welsh digital platform has not been operational for not less than 4 hours;

• “unique identifier” (“cod adnabod unigryw”) has the meaning given by regulation 9;

• ...

• ...

• “Welsh digital platform” (“platfform digidol Cymreig”) means the online system provided by the Welsh Government for use by contracting authorities to whom regulation 2 applies;

• “works” (“gweithiau”) has the meaning given by regulation 45.

Publication of notices on central digital platform

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• (1) A notice, document or information which is published or given under a provision of the 2023 Act listed in paragraph (5) must first be published or given, by the contracting authority publishing it on the central digital platform.

• (2) Unless paragraph (3) or paragraph (6) apply, the requirement in paragraph (1) for the contracting authority to first publish or give a notice, document or information on the central digital platform is met where the contracting authority has submitted the notice, document or information to the Welsh digital platform and—

• (a) the Minister for the Cabinet Office has informed the contracting authority that the notice, document or information has successfully been submitted for publication to the central digital platform, or

• (b) the notice, document or information is capable of being accessed by suppliers and members of the public on the central digital platform.

• (3) If the Welsh digital platform is unavailable so that the requirement in paragraph (2) cannot be met, a contracting authority may publish a notice, document or information—

• (a) on the central digital platform, or

• (b) on the central digital platform by using an alternative online system.

• (4) Where paragraph (3) applies the requirement in paragraph (1) will be met where—

• (a) the Minister for the Cabinet Office has informed the contracting authority that the notice, document or information has successfully been submitted for publication to the central digital platform, or

• (b) the notice, document or information is capable of being accessed by suppliers and members of the public on the central digital platform.

• (5) The relevant provisions of the 2023 Act are—

• (a) section 15(1) (planned procurement notices)[^f00012],

• (b) section 17(1)(a) (preliminary market engagement notices),

• (c) section 21(1) (tender notices),

• (d) section 24(4) (refining award criteria), in respect of republishing tender notices only,

• (e) section 31(5) (modifying a section 19 procurement), in respect of republishing tender notices only,

• (f) section 39(2) (dynamic market notices: intention to establish a dynamic market)[^f00013],

• (g) section 39(3) (dynamic market notices: establishment of a dynamic market),

• (h) section 39(4) (dynamic market notices: modifications to a dynamic market),

• (i) section 39(5) (dynamic market notices: cessation of a dynamic market),

• (j) section 44(1) (transparency notices),

• (k) section 50(1) (contract award notices),

• (l) section 52(3) (key performance indicators),

• (m) section 53(1) (contract details notices),

• (n) section 53(3) (copies of contracts),

• (o) section 55(2) (procurement termination notices),

• (p) section 69(1) (payments compliance notices),

• (q) section 71(2)(b) (contract performance: assessment of performance against key performance indicators),

• (r) section 71(5) (contract performance: breach of public contract or failure to perform),

• (s) section 75(1) (contract change notices),

• (t) section 75(5) (contract change notices: modifications taken together),

• (u) section 77(1) (publication of modifications),

• (v) section 80(1) (contract termination notices),

• (w) section 87(1) (below-threshold tender notices),

• (x) section 87(3) (contract details notices following notifiable below-threshold contracts),

• (y) section 93(2) (pipeline notices), and

• (z) section 94(3) (general exemptions from duties to publish or disclose information: information being withheld).

• (6) If all of the conditions that apply in paragraph (7) are met the contracting authority may publish or give the notice, document or information on the Welsh digital platform or, if unavailable, on an alternative online system and in doing so the authority is to be treated as meeting for the time being the requirement in paragraph (1).

• (7) The conditions are that—

• (a) in the case of a notice mentioned in paragraph (8), no less than 4 hours have passed since the notice was submitted for publication to the central digital platform,

• (b) in the case of any other notice, or a document or information, no less than 48 hours have passed since the notice, document or information was submitted for publication to the central digital platform,

• (c) the contracting authority has not received confirmation from the Minister for the Cabinet Office that the notice, document or information has successfully been published on the central digital platform, and

• (d) the notice, document or information is not capable of being accessed by members of the public on the central digital platform.

• (8) The notices are a transparency notice, contract award notice or contract details notice relating to—

• (a) the direct award of a public contract under paragraphs 13 and 14 of Schedule 5 to the 2023 Act (urgency), or

• (b) the direct award of a public contract under section 42 of the 2023 Act (direct award to protect life, etc.).

• (9) But the contracting authority is no longer to be treated as meeting for the time being the requirement in paragraph (1) if the Minister for the Cabinet Office informs the contracting authority that the submission of the notice, document or information to the central digital platform has been rejected.

• (10) A contracting authority which uses the Welsh digital platform or an alternative online system in accordance with paragraph (6) must cooperate with the Minister for the Cabinet Office to ensure that the notice, document or information in question is subsequently—

• (a) published on the central digital platform, and

• (b) capable of being accessed by members of the public on that system.

• (11) An “alternative online system” is an online system for publishing procurement information which is—

• (a) free of charge and readily accessible to suppliers and members of the public,

• (b) accessible to disabled people, and

• (c) not the central digital platform or the Welsh digital platform.

• (12) Nothing in this regulation prevents a contracting authority from publishing the notice, document or information somewhere other than on the central digital platform, the Welsh digital platform or alternative online system but the authority must not do so before complying with the requirements of paragraph (1) or (6).

Sharing core supplier information through central digital platform

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• (1) This regulation applies to a contracting authority where a supplier shares core supplier information with the authority during a procedure listed in paragraph (2) with a view to the award of a public contract.

• (2) The procedures are—

• (a) an open procedure,

• (b) a competitive flexible procedure,

• (c) a direct award under section 41 or 43 of the 2023 Act, or

• (d) a competitive selection process for frameworks under section 46 of the 2023 Act.

• (3) If the core supplier information is shared—

• (a) during an open procedure, or

• (b) a competitive flexible procedure,

the contracting authority must obtain confirmation from the supplier of the matters in paragraph (5) before the end of the tendering period.

• (4) If the core supplier information is shared—

• (a) before a direct award under section 41 or 43 of the 2023 Act, or

• (b) during a competitive selection process for frameworks under section 46 of that Act,

the contracting authority must obtain confirmation from the supplier of the matters in paragraph (5) before the award of the public contract.

• (5) The matters are that the supplier—

• (a) has registered on the central digital platform,

• (b) has submitted its up-to-date core supplier information to that platform, and

• (c) has shared that up-to-date core supplier information with the contracting authority by means of a facility provided on that platform for the purpose of sharing core supplier information.

• (6) Paragraph (7) applies where—