What does the Procurement Act 2023 mean for procurement in Wales?

What is the Procurement Act 2023?

Put simply, the Procurement Act 2023 has been introduced in order to improve the way that public sector bodies spend money. The new Act aims to make the process simpler and streamlined, whilst increasing transparency and opening the procurement process up to the benefit of prospective suppliers of all sizes.

What does the Procurement Act 2023 mean for Wales?

Whilst the Procurement Act 2023 incorporates many of the concepts found in the previous procurement regime, both suppliers and contracting authorities will have to grasp the key differences and therefore adapt a number of their procedures to ensure compliance with the new legislation.

In Wales, the Procurement (Wales) Regulations 2024, applies to a contracting authority that is a Devolved Welsh Authority (DWA), including in relation to a procurement under a devolved Welsh procurement arrangement and a contracting authority that is to be treated a DWA under section 111 of the Procurement Act 2023. The regulations implement and provide detail on provisions of the Procurement Act.

Additionally, contracting authorities in Wales will have to consider the socially responsible procurement duty under the Social Partnership and Public Procurement (Wales) Act 2023. Furthermore, for ‘relevant authorities’ procuring certain health services in Wales, as defined in the NHS (Wales) Act 2006, will have to consider the provisions in the Health Service Procurement (Wales) Act 2024.

The Welsh Government has published technical guidance supporting preparation for the Procurement Act 2023 and the associated Welsh Regulations for contracting authorities and suppliers.

If you are a DWA, there are key differences in how some of the provisions of the Procurement Act apply that you may need to consider.

What are the key differences between the Procurement Act 2023 and the Procurement (Wales) Regulations 2024?

There are a few key differences that you will need to be aware of between the two sets of regulations.

Under the Procurement Act 2023:

• Under Section 14, DWAs or a contracting authority in relation to procurement under a devolved Welsh procurement arrangement, must have regard to the Wales procurement policy statement. This is a statement that Welsh Ministers have the power to publish, setting out the Welsh Government’s strategic priorities in relation to procurement.
• Under Sections 53(4) & 77(3), DWAs or authorities awarded a contract under a devolved Welsh procurement arrangement do not have to publish a copy of the public contract or modified contracts with an estimated value of more than £5 million. However, a DWA would have to if the contract was awarded as part of a procurement under a reserved procurement arrangement.
• Under Section 85, for a regulated below-threshold contract, DWAs or authorities awarded a contract under a devolved Welsh procurement arrangement may restrict the submission of tenders by reference to an assessment of a supplier’s suitability to perform the contract. The same caveat as in Section 53(4) and 77(3) applies, however, for a DWA awarded a contract as part of a procurement under a reserved procurement arrangement – who may not restrict the submission of tenders.

Under Procurement (Wales) Regulations 2024:

• Regulation 5 – DWAs, in order to satisfy the obligation under the 2023 Act to publish a notice, document or information on the central digital platform, must submit the notice, document or information to the Welsh digital platform – Sell 2 Wales, unless it is unavailable – which the caveats under the regulation then apply.
• Regulation 26 – sets out the other information a DWA must include in a dynamic market notice. This includes, as stated under paragraph 6(g), confirmation that a conflicts assessment was prepared and revised.
• Under Regulations 28-31 and published in the Welsh Government Technical guidance – Whilst DWA’s, for contracts valued above £5million, do not have to publish the names of unsuccessful suppliers in Contract Award Notices, the information will still need to be provided for data collection and analysis purposes. The names would, however have to be published if the contract was awarded under a reserved procurement arrangement.
• Regulation 37 – sets out the other information a DWA must include in a contract details notice after entering into a notifiable below-threshold contract, including unique supplier IDs.

How can we help?

If you are concerned about how you may remain compliant under the new legislation, our team of solicitors at Harding Evans can meet with you to discuss your needs at our Newport or Cardiff offices.

Please contact us to arrange an appointment.