PART 11Appropriate authorities and cross-border procurement
I1111Welsh Ministers: restrictions on the exercise of powers
1
The Welsh Ministers may only exercise a power under this Act for the purpose of regulating—
a
contracting authorities that are devolved Welsh authorities (within the meaning given in section 157A of the Government of Wales Act 2006),
b
contracting authorities that—
i
are not devolved Welsh authorities, but
ii
for the purposes of this Act, are to be treated as devolved Welsh authorities, or
c
procurement under a devolved Welsh procurement arrangement.
2
A contracting authority that is a public undertaking or private utility is to be treated as a devolved Welsh authority for the purposes of this Act if—
a
it operates wholly or mainly in relation to Wales, and
b
its activities are wholly or mainly activities that do not relate to reserved matters.
3
Otherwise, a contracting authority is to be treated as a devolved Welsh authority for the purposes of this Act if the authority’s functions—
a
are exercisable wholly or mainly in relation to Wales, and
b
are wholly or mainly functions that do not relate to reserved matters.
4
Other than in this section and section 127 (commencement), a reference in this Act to a devolved Welsh authority includes a reference to an authority that is to be treated as a devolved Welsh authority for the purposes of this Act.
5
Subsection (1) does not apply in relation to a power under sections 59 to 66 (debarment).
6
In this section—
“reserved matters” has the meaning given in the Government of Wales Act 2006;
“Wales” has the meaning given in section 158 of the Government of Wales Act 2006 (when read by reference to section 157A(9) of that Act).
I2112Northern Ireland department: restrictions on the exercise of powers
1
A Northern Ireland department may only exercise a power under this Act for the purpose of regulating—
a
contracting authorities that are transferred Northern Ireland authorities,
b
contracting authorities that are public undertakings or private utilities that—
i
are not transferred Northern Ireland authorities, but
ii
for the purposes of this Act, are to be treated as transferred Northern Ireland authorities, or
c
procurement under a transferred Northern Ireland procurement arrangement.
2
For the purposes of this section, an authority is a “transferred Northern Ireland authority” if its functions—
a
are exercisable only in or as regards Northern Ireland, and
b
are wholly or mainly functions that do not relate to reserved or excepted matters (within the meaning given by the Northern Ireland Act 1998).
3
A contracting authority that is a public undertaking or private utility is to be treated as a transferred Northern Ireland authority for the purposes of this Act if—
a
it operates only in or as regards Northern Ireland, and
b
its activities are wholly or mainly activities that do not relate to reserved or excepted matters.
4
Other than in this section, a reference in this Act to a transferred Northern Ireland authority includes a reference to an authority that is to be treated as a transferred Northern Ireland authority for the purposes of this Act.
5
Subsection (1) does not apply in relation to a power under sections 59 to 66 (debarment).
I3113Minister of the Crown: restrictions on the exercise of powers
1
A Minister of the Crown may exercise a power under this Act for the purpose of regulating a contracting authority that is a devolved Welsh authority only in relation to procurement under—
a
a reserved procurement arrangement, or
b
a transferred Northern Ireland procurement arrangement.
2
Subsection (1) does not apply in relation to a power under section 67 (electronic invoicing) or 110 (guidance following procurement investigation).
3
A Minister of the Crown may not make regulations under section 67 or section 125, or publish guidance under section 110, for the purpose of regulating a devolved Welsh authority without the consent of the Welsh Ministers, unless the regulations relate to, or the guidance relates to, procurement under—
a
a reserved procurement arrangement, or
b
a transferred Northern Ireland procurement arrangement.
4
A Minister of the Crown may not make regulations under this Act for the purpose of regulating a transferred Northern Ireland authority without the consent of a Northern Ireland department, unless the regulations relate to procurement under—
a
a reserved procurement arrangement, or
b
a devolved Welsh procurement arrangement.
5
A Minister of the Crown may not publish guidance under section 110 for the purpose of regulating a Northern Ireland department without the consent of a Northern Ireland department, unless the guidance relates to procurement under—
a
a reserved procurement arrangement, or
b
a devolved Welsh procurement arrangement.
6
a
sections 59 to 66 (debarment);
b
section 89 (treaty state suppliers);
c
section 91 (non-discrimination in Scotland);
d
section 92 (trade disputes);
e
section 125 (power to make consequential, etc, provision);
f
section 127 (commencement).
I4114Definitions relating to procurement arrangements
1
In this Act, a reference to a procurement under a procurement arrangement is a reference to a procurement as part of which the contract is awarded—
a
in accordance with a framework or similar arrangement,
b
by reference to a dynamic market or similar arrangement, or
c
following a procedure or other selection process carried out—
i
jointly by two or more authorities, or
ii
by a centralised procurement authority or equivalent body.
2
A procurement arrangement is a devolved Welsh procurement arrangement if—
a
the framework was awarded by a devolved Welsh authority,
b
the dynamic market was established by a devolved Welsh authority,
c
the centralised procurement authority is a devolved Welsh authority, or
d
a devolved Welsh authority is designated the lead authority in the tender or transparency notice.
3
A procurement arrangement is a transferred Northern Ireland procurement arrangement if—
a
the framework was awarded by a transferred Northern Ireland authority,
b
the dynamic market was established by a transferred Northern Ireland authority,
c
the centralised procurement authority is a transferred Northern Ireland authority, or
d
a transferred Northern Ireland authority is designated the lead authority in the tender or transparency notice.
4
A procurement arrangement is a devolved Scottish procurement arrangement if—
a
the framework or similar arrangement was awarded by a devolved Scottish authority,
b
the dynamic market or similar arrangement was established by a devolved Scottish authority,
c
the centralised procurement authority or equivalent body is a devolved Scottish authority, or
d
a devolved Scottish authority was designated the lead authority in respect of the procedure or selection process.
5
A procurement arrangement is a reserved procurement arrangement if it is not—
a
a devolved Welsh procurement arrangement,
b
a transferred Northern Ireland procurement arrangement, or
c
a devolved Scottish procurement arrangement.
6
In this section—
“equivalent body” means, in relation to a centralised procurement authority, a body carrying out functions of a kind described in section 1(4) (centralised procurement authorities);
“framework” includes a framework agreement within the meaning given in Scottish procurement legislation;
“similar arrangement” includes, in relation to a dynamic market, a dynamic purchasing or qualification system.
I5115Powers relating to procurement arrangements
1
A Minister of the Crown may by regulations make provision, including provision amending this Act, for the purpose of regulating devolved Scottish authorities carrying out procurement under—
a
reserved procurement arrangements,
b
devolved Welsh procurement arrangements, or
c
transferred Northern Ireland procurement arrangements.
2
A Minister of the Crown may by regulations amend this Act for the purpose of disapplying provision so far as it relates to procurement under devolved Scottish procurement arrangements.
3
The Scottish Ministers may by regulations amend Scottish procurement legislation for the purpose of—
a
applying it in relation to procurement carried out by contracting authorities under devolved Scottish procurement arrangements;
b
disapplying it in relation to procurement carried out by devolved Scottish authorities under—
i
reserved procurement arrangements,
ii
devolved Welsh procurement arrangements, or
iii
transferred Northern Ireland procurement arrangements.
4
In this Act, “Scottish procurement legislation” means—
a
the Procurement Reform (Scotland) Act 2014 (asp 12),
b
the Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446),
c
the Utilities Contracts (Scotland) Regulations 2016 (S.S.I. 2016/49),
d
the Concession Contracts (Scotland) Regulations 2016 (S.S.I. 2016/65), and
e
any legislation which modifies or replaces that legislation (including an Act of the Scottish Parliament).