Explanatory note

These Regulations make provision for the procurement of relevant health services for the health service in Wales by relevant authorities. Provision is also made for the procurement of goods or other services that are connected to the health services (mixed procurement). These Regulations are made using powers under sections 10A(1), (2) and (3), 203(9) and (10), and 205(a) and (b) of the National Health Service (Wales) Act 2006.

These Regulations disapply the provisions of the Procurement Act 2023 (“the 2023 Act”) in relation to regulated health service procurement in Wales using powers under section 120A(1) of the 2023 Act (regulation 34).

Relevant authorities are county councils or county borough councils in Wales, local health boards, National Health Service trusts, and special authorities. Relevant health services are health services which fall within one or more of the common procurement vocabulary (“CPV”) codes set out in Schedule 1. CPV codes are those adopted by Regulation (EC) No. 2195/2002 of the European Parliament and of the Council of 5 November 2002.

Part 1 contains introductory provisions, including those which set out when the Regulations apply.

Regulations 5 and 6 of Part 1 set out procurement principles and key criteria for decision-making when procuring services under these Regulations.

Part 2 sets out the procurement processes, the circumstances in which they are used and the procedure for each. There are four processes: the Direct Award Process 1, the Direct Award Process 2, the Most Suitable Provider Process, and the Competitive Process. Part 2 also provides that where a relevant authority decides to conclude a framework agreement, they must follow the Competitive Process (regulation 7(2)).

If conditions are met, the relevant authority has discretion to select a procurement process. Where a relevant authority has a discretion to choose which procurement process it follows, but decides that a different process would be more suitable, it may follow a different process (regulation 7(8)).

Part 2 sets out further provisions for certain procurement processes. This includes provision for a standstill period; the procedure a relevant authority must follow if an aggrieved provider makes a representation; provision for the modification of contracts and framework agreements during their term without following a new procurement process if conditions are met; provision for a special process for certain urgent awards or modifications; and provision for procurement processes to be abandoned or for steps in a procurement process to be repeated, if conditions are met.

Part 3 makes provision about framework agreements. This includes: how they are defined; how they may be concluded; and the maximum term duration. This Part also makes provision for when the Competitive Process must be commenced to allow additional providers to be selected to be party to a framework agreement during its term and the processes to be followed when awarding contracts under a framework agreement.

Part 4 makes further provision about the procurement of relevant health services. This includes: the basic selection criteria; a general exemption from duties to publish sensitive commercial information; the process for submitting a notice for publication; the circumstances when a provider can be excluded; how conflicts of interest or potential conflicts of interest must be managed; and requirements to allow for contract termination.

Part 5 sets out administrative provisions and requirements for relevant authorities. This includes provisions for retention of records; annual summaries to be published; and monitoring requirements. Part 5 also makes provision for relevant authorities to seek advice from independent experts.

Part 6 makes transitional provision.

Part 7 makes provision for the disapplication of the 2023 Act to regulated health service procurement in Wales.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment as to the likely costs and benefits of complying with these Regulations has been prepared. A copy can be obtained from Welsh Government, Commercial Directorate, Cathays Park, Cardiff, CF10 3NQ and is published on www.gov.wales.