Amendment of the Procurement Regulations 2024
8.—(1) The Procurement Regulations 2024(1) are amended as follows.
(2) In regulation 11 (supplier’s connected person information)—
(a)omit the “and” after paragraph (6)(f);
(b)after sub-paragraph (g), insert—
“, and
(h)where the connected person is a company registered under the CA 2006, the person’s registration number given under that Act”.
(3) In regulation 12 (supplier’s exclusion grounds information)—
(a)in paragraph (1), for “(13)” substitute “(13A)”;
(b)insert “and” after paragraph (13)(d)(ii);
(c)omit paragraph (13)(e) and the “and” after it;
(d)after paragraph (13), insert—
“(13A) If the supplier or one or more connected persons has been the subject of an event mentioned in paragraphs (2) to (12), any evidence that the supplier or connected person—
(a)took the event seriously, for example by paying any fine or compensation,
(b)took steps to prevent the event occurring again, for example by changing staff or management, or putting procedures or training in place, and
(c)committed to taking further preventative steps, where appropriate.”.
(4) In regulation 18 (tender notices: open procedure), omit sub-paragraph (2)(v).
(5) In regulation 19(2) (tender notices: competitive flexible procedure)—
(a)omit the “and” after sub-paragraph (g);
(b)after sub-paragraph (h), insert—
“, and
(i)whether an associated tender document is being, or may be, provided in accordance with the tender notice after the date when that notice is published and, if so, a link to the web page where it will be provided, or an explanation of how the document will be provided”.
(6) In regulation 26(2) (transparency notices)—-
(a)after sub-paragraph (d), insert—
“(da)in the case of a procurement where the direct award justification at paragraph 8 of Schedule 5 to the PA 2023 applies, the unique identifiers of the earlier competitive tendering procedure (that is the procurement identifier) and contract referred to in paragraph 8(a) of Schedule 5;”;
(b)omit the “and” after sub-paragraph (k)(i);
(c)after sub-paragraph (k)(ii), insert—
“, and
(iii)the direct award justification in Schedule 5 to the PA 2023 which applies and an explanation of why the contracting authority considers that it applies”;
(d)after sub-paragraph (p), insert—
“(pa)a description of any option which will be included in the contract—
(i)to supply additional goods, services or works, or
(ii)to extend or renew the term of the contract,”.
(7) In regulation 29(2) (contract award notices published by private utilities: direct award), in sub-paragraph (g)—
(a)omit the “and” after paragraph (i);
(b)after paragraph (ii), insert—
“, and
(iii)the direct award justification in Schedule 5 to the PA 2023 which applies and an explanation of why the contracting authority considers that it applies”.
(8) In regulation 32(2) (contract details notices: open or competitive flexible procedure), for sub-paragraph (r) (but not the “and” after it) substitute—
“(r)where key performance indicators were set in accordance with section 52(1) of the PA 2023, a description of the three key performance indicators which the contracting authority regards, at the time the contract details notice is published, as most material to performance of the contract obligations,”.
(9) In regulation 35(2) (contract details notice: direct award), for sub-paragraph (e) substitute—
“(e)if sub-paragraph (d) applies—
(i)the direct award justification in Schedule 5 to the PA 2023 which applies and an explanation of why the contracting authority considers that it applies,
(ii)the offence or other event mentioned in Schedule 6 to the PA 2023 by virtue of which the supplier is an excluded supplier, and
(iii)which ground in section 41(5) of the PA 2023 applies and an explanation of why the contracting authority considers that it applies,”.
(10) In regulation 38 (payments compliance notices)—
(a)in paragraph (2), after sub-paragraph (c), insert—
“(ca)the proportion of invoices paid in accordance with the term in section 68(2) of the PA 2023 during the reporting period, expressed as a percentage of the total number of invoices that were, or should have been, paid in accordance with that term within the reporting period,”;
(b)in paragraph (5), for “is to” substitute “includes”.
(11) In regulation 39(4) (contract performance notices except in relation to full termination)—
(a)for sub-paragraphs (d) and (e) substitute—
“(d)a description of the three key performance indicators set in accordance with section 52(1) which the contracting authority regards, at the time the contract performance notice is published, as most material to performance of the contract obligations,
(e)a statement that the notice is being used to set out the contracting authority’s assessment of performance against key performance indicators selected in accordance with sub-paragraph (d),”;
(b)in sub-paragraphs (f) and (g), after “against the” insert “selected”.
(12) After regulation 42, insert—
Exempt contracts: vertical arrangements’ calculations
42A.—(1) For the purposes of paragraph 2(2)(c) of Schedule 2 to the PA 2023 (exempted contracts), the calculation of the percentage of activities carried out by a person is to be made in accordance with this regulation.
(2) Subject to paragraph (8), the percentage of activities carried out by a person for or on behalf of the contracting authorities or other persons described in sub-paragraph (ii) of paragraph 2(2)(c) is to be calculated by taking that person’s attributable turnover as a percentage of their total turnover, over the relevant period.
(3) A person’s attributable turnover is their turnover deriving from activities carried out on behalf of the contracting authorities or other persons described in sub-paragraph (ii) of paragraph 2(2)(c).
(4) Where a person’s attributable turnover or total turnover is not available for the entirety of the relevant period because the person was created or commenced their activities following the beginning of the relevant period, the attributable turnover and total turnover is to be calculated in accordance with paragraph (5).
(5) A person’s attributable turnover and total turnover is to be calculated—
(a)where there has been no turnover at all during the relevant period, using credible business projections for a period of three years beginning with the date of contract award;
(b)in any other case, using—
(i)any attributable turnover or total turnover, as the case may be, generated during the relevant period, and
(ii)credible business projections, for a period beginning with the date of contract award,
which, when combined, provide turnover information and projections for the entirety of the period of three years beginning with the date any turnover was first generated during the relevant period.
(6) Where a person’s attributable turnover or total turnover for the entirety of the relevant period is, as at the date of contract award, no longer representative of the person’s activities because the activities changed as a result of a reorganisation of the person which occurred following the beginning of the relevant period, the attributable turnover and total turnover is to be calculated in accordance with paragraph (7).
(7) A person’s attributable turnover and total turnover is to be calculated—
(a)where there has been no turnover at all generated after reorganisation, using credible business projections for a period of three years beginning with the date of contract award;
(b)in any other case, using—
(i)any attributable turnover or total turnover, as the case may be, generated after reorganisation, and
(ii)credible business projections, for a period beginning with the date of contract award,
which, when combined, provide turnover information and projections for the entirety of the period of three years beginning with the date any turnover was first generated after reorganisation.
(8) Where the percentage of activities carried out by a person calculated in accordance with paragraphs (2) to (7) does not satisfy the requirement in paragraph 2(2)(c) of Schedule 2 to the PA 2023, the percentage of activities may be calculated by taking, over the relevant period, any of the following that does satisfy that requirement—
(a)costs incurred by the person on activities carried out for or on behalf of the authorities or other persons, as a percentage of their total costs;
(b)time spent by the person on activities carried out for or on behalf of the authorities or other persons, as a percentage of their total time;
(c)the value of goods, services or works supplied by the person to the authorities or other persons, as a percentage of the total value of goods, services or works supplied by the person;
(d)the value of goods, services or works supplied to the person by the authorities or other persons, as a percentage of the total value of goods, services or works supplied to the person.
(9) In this regulation—
“accounting period” means a period in respect of which accounts are prepared in relation to the person;
“date of contract award” means the date when the contracting authority decided to award the contract;
“relevant period” means—
the period of three years ending with the date of contract award, or
where, due to the timing of the preparation of the person’s accounts, information relating to turnover for the period in sub-paragraph (a) is not available as at the date of contract award, a period of three years ending with the date the last accounting period before the date of contract award for which such information is available ends;
“reorganisation” means a change, other than a minimal or incidental change, to a person’s structure, operations, funding or ownership.
Exempt contracts: horizontal arrangements’ calculations
42B.—(1) For the purposes of paragraph 3(2)(b) of Schedule 2 to the PA 2023 (exempted contracts), the calculation of the percentage of activities contemplated by the horizontal arrangement is to be made in accordance with this regulation.
(2) Subject to paragraph (8), the percentage of activities intended to be carried out other than for the purposes of the contracting authorities’ public functions is to be calculated by taking the non-attributable turnover generated by the horizontal arrangement’s activities as a percentage of the total turnover generated by the horizontal arrangement’s activities, over the relevant period.
(3) A horizontal arrangement’s non-attributable turnover is turnover generated by the horizontal arrangement’s activities that is attributable to purposes other than the contracting authorities’ public functions.
(4) Where the non-attributable turnover or total turnover generated by a horizontal arrangement’s activities is not available for the entirety of the relevant period because the arrangement was created, or the activities commenced, after the beginning of the relevant period, the non-attributable turnover and total turnover is to be calculated in accordance with paragraph (5).
(5) Non-attributable turnover and total turnover generated by a horizontal arrangement’s activities is to be calculated—
(a)where there has been no turnover at all during the relevant period, using credible business projections for a period of three years beginning with the date of contract award;
(b)in any other case, using—
(i)any non-attributable turnover or total turnover, as the case may be, generated during the relevant period, and
(ii)credible business projections, for a period beginning with the date of contract award,
where, when combined, provide turnover information and projections for the entirety of the period of three years beginning with the date any turnover was first generated during the relevant period.
(6) Where the non-attributable turnover or the total turnover generated by a horizontal arrangement’s activities for the entirety of the relevant period is, as at the date of contract award, no longer representative of the horizontal arrangement’s activities because the activities changed as a result of a reorganisation of the horizontal arrangement which occurred following the beginning of the relevant period, the non-attributable turnover and total turnover is to be calculated in accordance with paragraph (7).
(7) Non-attributable turnover and total turnover generated by a horizontal arrangement’s activities is to be calculated—
(a)where there has been no turnover generated after reorganisation or the change in activities, using credible business projections for a period of three years beginning with the date of contract award;
(b)in any other case, using—
(i)any non-attributable turnover or total turnover, as the case may be, generated after reorganisation or the change in activities, and
(ii)credible business projections, for a period beginning with the date of contract award,
where, when combined, provide turnover information and projections for the entirety of the period of three years beginning with the date any turnover was first generated after reorganisation or the change in activities.
(8) Where the percentage of activities intended to be carried out other than for the purposes of the contracting authorities’ public functions, calculated in accordance with paragraphs (2) to (7), does not satisfy the requirement in paragraph 3(2)(b) of Schedule 2 to the PA 2023, the percentage of activities may be calculated by taking, over the relevant period, any of the following that does satisfy that requirement—
(a)costs incurred in respect of the horizontal arrangement’s activities for purposes other than the authorities’ public functions as a percentage of its total costs;
(b)time spent in respect of the horizontal arrangement’s activities for purposes other than the authorities’ public functions as a percentage of its total time;
(c)the value of goods, services or works supplied in respect of the horizontal arrangement’s activities for purposes other than the authorities’ public functions as a percentage of the total value of goods, services or works supplied in respect of the activities.
(9) In this regulation—
“accounting period” means a period in respect of which accounts are prepared in relation to the horizontal arrangement’s activities;
“date of contract award” means the date when the contracting authority decided to award the contract;
“horizontal arrangement’s activities” means the activities contemplated by, or undertaken in pursuance of, a horizontal arrangement;
“relevant period” means—
the period of three years ending with the date of contract award, or
where, due to the timing of the preparation of accounts related to the horizontal arrangement’s activities, information relating to turnover for the period in sub-paragraph (a) is not available as at the date of contract award, a period of three years ending with the date the last accounting period before the date of contract award for which such information is available ends;
“reorganisation” means a change, other than a minimal or incidental change, to any terms of the horizontal arrangement in respect of—
the horizontal arrangement’s activities, or
where the arrangement establishes a person to undertake those activities, the structure, operations, funding or ownership of that person.
Exempt contracts: affiliated persons’ calculations
42C.—(1) For the purposes of the turnover test in paragraph 6(3) of Schedule 2 to the PA 2023, an affiliated person’s—
(a)affiliated turnover amount(2) is to be calculated using their entire affiliated turnover amount generated over the relevant period, and
(b)total turnover amount is to be calculated using their entire total turnover amount generated over the relevant period.
(2) Where an affiliated person’s affiliated turnover amount or total turnover amount is not available for the entirety of the relevant period because the affiliated person(3) was created or commenced their activities following the beginning of the relevant period, the affiliated turnover amount and total turnover amount is to be calculated in accordance with paragraph (3).
(3) An affiliated person’s affiliated turnover amount and total turnover amount is to be calculated—
(a)where there has been no turnover at all during the relevant period, using credible business projections for a period of three years beginning with the date of contract award;
(b)in any other case, using—
(i)any affiliated turnover or total turnover, as the case may be, generated during the relevant period, and
(ii)credible business projections, for a period beginning with the date of contract award,
which, when combined, provide turnover information and projections for the entirety of the period of three years beginning with the date any turnover was first generated during the relevant period.
(4) In calculating the affiliated turnover amount and total turnover amount in relation to a person (“A”), equivalent turnover of a person who is an affiliated person in relation to A, but is not the utility(4), is to be treated as part of A’s turnover.
(5) In this regulation—
“accounting period” means a period in respect of which accounts are prepared in relation to the affiliated person;
“date of contract award” means the date when the contracting authority decided to award the contract;
“equivalent turnover” means—
where the turnover test is being applied in respect of goods—
in respect of the affiliated turnover amount, turnover deriving from the supply of goods to the utility or other persons affiliated with the utility;
in respect of the total turnover amount, the total turnover deriving from the supply of goods,
where, for the purposes of paragraph (i), those goods are the same or similar to the goods A supplies to the utility or other persons affiliated with the utility and are supplied over the relevant period or, where A’s turnover has been calculated in accordance with paragraph (3), a corresponding three-year period;
where the turnover test is being applied in respect of services—
in respect of the affiliated turnover amount, turnover deriving from the supply of services to the utility or other persons affiliated with the utility;
in respect of the total turnover amount, the total turnover deriving from the supply of services,
where, for the purposes of paragraph (i), those services are the same or similar to the services A supplies to the utility or other persons affiliated with the utility and are supplied over the relevant period or, where A’s turnover has been calculated in accordance with paragraph (3), a corresponding three-year period;
where the turnover test is being applied in respect of works—
in respect of the affiliated turnover amount, turnover deriving from the supply of works to the utility or other persons affiliated with the utility;
in respect of the total turnover amount, the total turnover deriving from the supply of works,
where, for the purposes of paragraph (i), those works are the same or similar to the works A supplies to the utility or other persons affiliated with the utility and are supplied over the relevant period or, where A’s turnover has been calculated in accordance with paragraph (3), a corresponding three-year period;
“relevant period” means—
the period of three years ending with the date of contract award, or
where, due to the timing of the preparation of the affiliated person’s accounts, information relating to turnover for the period in sub-paragraph (a) is not available as at the date of contract award, a period of three years ending with the date the last accounting period before the date of contract award for which such information is available ends.
Gas or heat operator calculations
42D.—(1) For the purposes of paragraph 1(2)(c) of Schedule 4 to the PA 2023—
(a)the amount of gas or heat supplied to the network is to be calculated using the total turnover generated by the supply of gas or heat by the operator to the network (“network turnover”) during the relevant period, and
(b)the operator’s turnover amount is to be calculated using the operator’s total turnover during the relevant period.
(2) Where an operator’s network turnover or total turnover is not available for the entirety of the relevant period because the operator was created or commenced their activities after the beginning of the relevant period, turnover is to be calculated in accordance with paragraph (3).
(3) An operator’s network turnover and total turnover is to be calculated—
(a)where there has been no turnover at all during the relevant period, using credible business projections for a period of three years beginning with the date of contract award;
(b)in any other case, using—
(i)any network turnover or total turnover, as the case may be, generated during the relevant period, and
(ii)credible business projections, for a period beginning with the date of contract award,
where, when combined, provide turnover information and projections for the entirety of the period of three years beginning with the date any turnover was first generated during the relevant period.
(4) In this regulation—
“accounting period” means a period in respect of which accounts are prepared in relation to the operator;
“date of contract award” means the date when the contracting authority decided to award the contract;
“quarter” means a period of three months beginning with 1st January, 1st April, 1st July or 1st October in any given year;
“relevant period” means—
the period of three years ending with the date of contract award, or
where, due to the timing of the preparation of the operator’s accounts, turnover information for the period in sub-paragraph (a) is not available as at the date of contract award, a period of three years corresponding with the accounting periods of the operator ending with the date the last quarter before the date of contract award for which such information is available ends.
Electricity operator calculations
42E.—(1) For the purposes of paragraph 2(2)(d) of Schedule 4 to the PA 2023—
(a)the amount of electricity supplied to the network is to be calculated using the total amount of electricity supplied by the operator to the network during the relevant period, and
(b)the amount of energy produced by the operator is to be calculated using the total amount of energy produced by the operator during the relevant period.
(2) Where the amount of electricity supplied by the operator to the network or the amount of energy produced by the operator is not available for the entirety of the relevant period because the operator was created or commenced their activities after the beginning of the relevant period, electricity supplied and energy produced is to be calculated in accordance with paragraph (3).
(3) The amount of electricity supplied by the operator to the network and energy produced by the operator is to be calculated—
(a)where there has been no energy produced during the relevant period, using credible business projections for a period of three years beginning with the date of contract award;
(b)in any other case, using—
(i)any electricity supplied to the network or energy produced, as the case may be, during the relevant period, and
(ii)credible business projections, for a period beginning with the date of contract award,
which, when combined, provide information in respect of electricity supplied or energy produced, as the case may be, and projections for the entirety of the period of three years beginning with the date that energy was first produced during the relevant period.
(4) In this regulation—
“accounting period” means a period in respect of which accounts are prepared in relation to the operator;
“date of contract award” means the date when the contracting authority decided to award the contract;
“quarter” means a period of three months beginning with 1st January, 1st April, 1st July or 1st October in any given year;
“relevant period” means either—
the period of three years ending with the date of contract award, or
where, due to the timing of the preparation of the operator’s accounts, information relating to electricity supplied or energy produced for the period in sub-paragraph (a) is not available as at the date of contract award, a three-year period corresponding with the accounting periods of the operator ending with the date the last quarter before the date of contract award for which such information is available ends.
Water operator calculations
42F.—(1) For the purposes of paragraph 3(4)(d) of Schedule 4 to the PA 2023—
(a)the amount of drinking water supplied to the network is to be calculated using the total amount of drinking water supplied by the operator to the network during the relevant period, and
(b)the amount of drinking water produced by the operator is to be calculated using the total amount of drinking water produced by the operator during the relevant period.
(2) Where the amount of drinking water supplied by the operator to the network or the amount of drinking water produced by the operator is not available for the entirety of the relevant period because the operator was created or commenced their activities after the beginning of the relevant period, the amount of drinking water supplied and produced is to be calculated in accordance with paragraph (3).
(3) The amount of drinking water supplied by the operator to the network and the amount of drinking water produced by the operator is to be calculated—
(a)where there has been no drinking water produced during the relevant period, using credible business projections for a period of three years beginning with the date of contract award;
(b)in any other case, using—
(i)any drinking water supplied to the network or drinking water produced, as the case may be, during the relevant period, and
(ii)credible business projections, for a period beginning with the date of contract award,
which, when combined, provide information relating to drinking water supplied or produced, as the case may be, and projections for the entirety of the three year period beginning with the date that drinking water was first produced during the relevant period.
(4) In this regulation—
“accounting period” means a period in respect of which accounts are prepared in relation to the operator;
“date of contract award” means the date when the contracting authority decided to award the contract;
“quarter” means a period of three months beginning with 1st January, 1st April, 1st July or 1st October in any given year;
“relevant period” means—
the period of three years ending with the date of contract award, or
where, due to the timing of the preparation of the operator’s accounts, information relating to drinking water supplied or produced for the period in sub-paragraph (a) is not available as at the date of contract award, a three-year period corresponding with the accounting periods of the operator ending with the date the last quarter before the date of contract award for which such information is available ends.”.
(13) In the table in Schedule 2 (central government authorities)—
(a)for the entry relating to “Department for Business, Energy and Industrial Strategy” substitute—
| “Department for Business and Trade | Competition Appeal Tribunal |
| Competition and Markets Authority | |
| Competition Service | |
| Office of Manpower Economics”; |
(b)for “Department for Digital, Culture, Media and Sport” substitute “Department for Culture, Media and Sport”;
(c)after the entry for “Department for Education” insert—
| “Department for Energy Security and Net Zero | Nuclear Decommissioning Authority |
| Oil and Gas Authority (known as “North Sea Transition Authority”)”; |
(d)omit “Department for International Trade”;
(e)after the entry for “Department for Environment, Food and Rural Affairs” insert—
| “Department for Science, Innovation and Technology | Intellectual Property Office |
| Meteorological Office (known as “Met Office”) | |
| UK Research and Innovation”; |
(f)in the entry for “Ministry of Justice”, for “Her Majesty’s Courts and Tribunals Service” substitute “His Majesty’s Courts and Tribunals Service”.
See paragraph 6(3) of Schedule 2 to the PA 2023 for the definition of “affiliated turnover amount”.
See paragraph 6(2) of Schedule 2 to the PA 2023 for the meaning of “affiliated person”.
See section 35(4) of the PA 2023 for the definition of “utility”.