The Procurement Act 2023 – key differences between England and Wales

With procurements in Wales worth over £10bn each year, there are significant opportunities available to suppliers operating there.

The Procurement Act 2023 is a landmark piece of legislation designed to overhaul and streamline public procurement processes in the UK. While it applies to England, Wales and Northern Ireland, the devolved nature of governance in the UK means there are some notable differences in how procurement will be handled in Wales when compared with England.

The Procurement Act 2023

Both England and Wales are subject to the Procurement Act 2023, but the way it is implemented differs due to Wales’s devolved powers.

The Procurement (Wales) Regulations 2024 sit beneath the Procurement Act 2023 and provide the detail needed for the law to operate and be enforced. The Regulations are designed to improve the procurement process in Wales whilst also supporting the Welsh government’s aspirations surrounding issues of sustainability, social value and local economic development.

Strategic priorities

Both England and Wales emphasise the importance of social value in procurements, but there are key differences in how these values are integrated into the procedures at play.

In Wales, public bodies will also have to consider The Social Partnership and Public Procurement (Wales) Act 2023 (“the SPPP Act”). The SPPP Act sets out the socially responsible public procurement duty which imposes strategy, reporting and accountability obligations on contracting authorities. It also imposes a duty on contracting authorities to seek to improve the economic, environmental and cultural wellbeing of its local area by carrying out procurements in a socially responsible way.

The SPPP Act aims to ensure that procurements contribute to the achievement of the goals contained within the Well-being of Future Generations (Wales) Act 2015. Under this Act, public bodies are required to consider the long-term impacts of their decisions insofar as they relate to issues such as environmental sustainability, local employment and fair working conditions.

Procurement procedure

The Procurement Act 2023 brings in greater requirements when it comes to the publication of notices. Under the existing regime notices are, for the most part, focussed at the beginning and end of the procurement process. However, the new Act has, at its core, an emphasis on transparency, requiring notices to be published throughout the lifecycle of a contract, from the pre-procurement planning stage right up to contract termination or expiry.

In England, public authorities are required to publish contract notices on “Find a Tender”, the government tendering service, whereas any Welsh public authorities will publish notices on “Sell2Wales”. Both “Find a Tender” and “Sell2Wales” feed into a central digital platform (“CDP”) which will publish procurement information from all UK contracting authorities.

Under the new Procurement Act 2023, a contracting authority is required to publish a ‘contract details’ notice when it enters into a public contract. In England, where a public contract has an estimated value of over £5m, a copy of the contract should also be published with the contract details notice. This publishing requirement does not apply to devolved Welsh authorities who can rely on a derogation removing the requirement to publish a copy of the contract itself.

Similarly, in England, where the value of a contract exceeds £5m, an authority will be required to publish the names of unsuccessful bidders in contract award notices. There is no equivalent requirement for devolved Welsh authorities to publish the same information.

Below-threshold contracts

Any contract for the supply of goods, services or works to a contracting authority is a public contract, provided it has an estimated value which is not less than the threshold amount set out in Schedule 1 to the Procurement Act 2023.

A contract which has a monetary value lower than the relevant threshold is known as a below-threshold contract. A below-threshold contract is not a ‘covered procurement’ for the purpose of the Procurement Act 2023 and will not, therefore, be subject to as many obligations.

Under the Act, contracting authorities are still required to publish below-threshold tender notices where the estimated value of the contract is, in England, more than £12,000 for a central government authority contract or £30,000 for all other contracting authorities.

In Wales, central government authorities that are devolved Welsh authorities only need to post below-threshold contract tender notices where a contract value is more than £30,000 plus VAT. The same minimum contract value applies for all other Welsh contracting authorities.

Key takeaways

The Procurement Act 2023 was designed to create a unified procurement system across the UK but the application of the Act is different in Wales and England due to the devolved nature of governance.

The priorities of the Welsh Government are reflected in the increased focus on social value, while the focus in England remains on ensuring maximum value for money is achieved.

It is important that procurement professionals are aware of the key differences in the application of the law in Wales when compared with England, so that they can ensure they remain both compliant and competitive in the procurement process.