The Procurement (Wales) Regulations 2024

Editorial notes

Exempt contracts: affiliated persons’ calculations

45A

• (1) For the purposes of the turnover test in paragraph 6(3) of Schedule 2 to the 2023 Act, an affiliated person’s—

• (a) affiliated turnover amount 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 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 during the relevant period, using credible business projections for a three-year period, starting from 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, starting from the date of contract award, for such part of the three-year period as are not covered by paragraph (i).

• (4) In calculating the affiliated turnover amount and total turnover amount in relation to a person (“A”), the equivalent turnover of a person who is an affiliated person in relation to A, but is not the utility, is to be treated as part of A’s turnover.

• (5) In this regulation—

• “equivalent turnover” (“trosiant cyfwerth”) means—where the turnover test is being applied in respect of a utilities contract for the supply 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;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 a utilities contract for the supply 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;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 a utilities contract for the supply 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;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” (“cyfnod perthnasol”) means either—the period of three years ending with the date of contract award, orwhere information relating to turnover for the period in sub-paragraph (a) is not available, a three-year period corresponding with the accounting periods of the affiliated person, ending not earlier than one year before the date of contract award.

Gas or heat operator calculations

45B

• (1) For the purposes of paragraph 1(2)(c) of Schedule 4 to the 2023 Act—

• (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 during the relevant period, using credible business projections for a three-year period starting from 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, starting from the date of contract award, for such part of the three-year period as are not covered by paragraph (i).

• (4) In this regulation—

• “quarter” (“chwarter”) means a period of three months beginning with 1 January, 1 April, 1 July or 1 October in any given year;

• “relevant period” (“cyfnod perthnasol”) means either—the period of three years ending with the date of contract award, orwhere information relating to gas and heat supplied to the network or turnover for the period in sub-paragraph (a) is not available, a three-year period corresponding with the accounting periods of the operator, ending with the last quarter before the date of contract award for which the operator has such information available.

Electricity operator calculations

45C

• (1) For the purposes of paragraph 2(2)(d) of Schedule 4 to the 2023 Act—

• (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, the amount of electricity supplied by the operator to the network and the amount of energy produced by the operator is to be calculated in accordance with paragraph (3).

• (3) The amount of electricity supplied by the operator to the network and the amount of energy produced by the operator is to be calculated—

• (a) where there has been no electricity supplied or energy produced during the relevant period, using credible business projections for a three-year period starting from 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, starting from the date of contract award, for such part of the three-year period as are not covered by paragraph (i).

• (4) In this regulation—

• “quarter” (“chwarter”) means a period of three months beginning with 1 January, 1 April, 1 July or 1 October in any given year;

• “relevant period” (“cyfnod perthnasol”) means either—the period of three years ending with the date of contract award, orwhere information relating to electricity supplied or energy produced for the period in sub-paragraph (a) is not available, a three-year period corresponding with the accounting periods of the operator, ending with the last quarter before the date of contract award for which the operator has such information available.

Water operator calculations

45D

• (1) For the purposes of paragraph 3(4)(d) of Schedule 4 to the 2023 Act—

• (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 the amount of drinking water 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 supplied or produced during the relevant period, using credible business projections for a three-year period starting from 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, starting from the date of contract award, for such part of the three-year period as are not covered by paragraph (i).

• (4) In this regulation—

• “quarter” (“chwarter”) means a period of three months beginning with 1 January, 1 April, 1 July or 1 October in any given year;

• “relevant period” (“cyfnod perthnasol”) means either—the period of three years ending with the date of contract award, orwhere information relating to drinking water supplied or produced for the period in sub-paragraph (a) is not available, a three-year period corresponding with the accounting periods of the operator, ending with the last quarter before the date of contract award for which the operator has such information available.

Exempt contracts: vertical arrangements’ calculations

45E

• (1) For the purposes of paragraph 2(2)(c) of Schedule 2 to the 2023 Act (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 paragraph 2(2)(c)(ii) of Schedule 2 to the 2023 Act 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 paragraph 2(2)(c)(ii) of Schedule 2 to the 2023 Act.

• (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, as calculated in accordance with paragraphs (2) to (7), is not a suitable measure of the activities carried out by a person for the purposes of paragraph 2(2)(c) of Schedule 2 to the 2023 Act, the percentage of such activities must be calculated by taking, over the relevant period, one of the following—

• (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” (“cyfnod cyfrifyddu”) means a period in respect of which accounts are prepared in relation to the person;

• “date of contract award” (“dyddiad dyfarnu’r contract”) means the date when the contracting authority decided to award the contract;

• “relevant period” (“cyfnod perthnasol”) means either—the period of three years ending with the date of contract award, orwhere, 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” (“ad-drefnu”) means a change, other than a minimal or incidental change, to a person’s structure, operations, funding or ownership.

Exempt contracts: horizontal arrangements’ calculations

45F

• (1) For the purposes of paragraph 3(2)(b) of Schedule 2 to the 2023 Act (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, as calculated in accordance with paragraphs (2) to (7), is not a suitable measure of the activities intended to be carried out by the arrangement for the purposes of paragraph 3(2)(b) of Schedule 2 to the 2023 Act, the percentage of such activities must be calculated by taking, over the relevant period, one of the following—

• (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” (“cyfnod cyfrifyddu”) means a period in respect of which accounts are prepared in relation to the horizontal arrangement’s activities;

• “date of contract award” (“dyddiad dyfarnu’r contract”) means the date when the contracting authority decided to award the contract;

• “horizontal arrangement’s activities” (“gweithgareddau’rtrefniant llorweddol”) means the activities contemplated by, or undertaken in pursuance of, a horizontal arrangement;

• “relevant period” (“cyfnod perthnasol”) means either—the period of three years ending with the date of contract award, orwhere, 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” (“ad-drefnu”) 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, orwhere the arrangement establishes a person to undertake those activities, the structure, operations, funding or ownership of that person.

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