Health service procurement: draft statutory guidance - Section 5: transparency

Relevant authorities are required to evidence that they have properly exercised the responsibilities and flexibilities conferred on them by the regime, to ensure that there is proper scrutiny and accountability of decisions made about the procurement of health services. This section sets out the steps that relevant authorities must take to be transparent in their procurement process under this regime.

There are several elements to the transparency requirements under this regime – these apply differently according to which procurement process is being applied. Annex B provides detailed information about the transparency requirements for all processes under the regulations. Relevant authorities must follow the transparency requirements relevant to the approach being followed.

In all circumstances, relevant authorities must keep internal records of their procurement processes and must publish notices confirming their decision to award a contract.

When following the most suitable provider process relevant authorities must also make their intentions clear in advance by submitting a notice for publication.

When following direct award process 2, the most suitable provider process and the competitive process (including when concluding a framework agreement and when awarding a contract based on a framework agreement using the competitive process) relevant authorities must also communicate their decision to award a contract publicly and observe a standstill period during which representations can be made. The standstill period must end before contracts can be awarded.

All transparency notices referred to in this section must be published using the central digital platform, Find a Tender Service (FTS) by first submitting a notice on the Welsh digital platform, Sell 2 Wales (S2W). Should the Welsh digital platform (S2W) be unavailable, a relevant authority may publish a notice or information on the central digital platform (FTS) or on the central digital platform (FTS) by using an alternate online system. Where the Welsh digital platform is unavailable, this is to be considered as meeting the requirement to submit a notice for publication once specific conditions are met.

Where the central digital platform is unavailable, a relevant authority may submit a notice for publication on the Welsh digital platform only, or if the Welsh digital platform is also unavailable, on an alternative online system. A relevant authority using the Welsh digital platform (S2W) or an alternate online system must cooperate with the Cabinet Office to ensure the notice or information is subsequently published on the central digital platform and accessible by providers and members of the public. If using an alternate system to FTS or S2W, relevant authorities are also required to ensure that such a system publishes information that is free of charge and is readily accessible to providers and disabled people. Should the Cabinet Office reject the submission of a notice or information, the relevant authority’s publication will no longer be considered as meeting the requirement to submit a notice for publication as set out in the regulations.

The information that must be included in the notices is set out in annex B and relevant authorities should refer to the separate guide to publishing these notices on the central digital platform (FTS).

In addition to the notices required under the various procurement processes, relevant authorities must publish notices when they are abandoning a procurement process, making an urgent award or contract modification, or undertaking certain non-urgent contract modifications. Annex B contains further information about the requirements for each of these scenarios.

Relevant authorities must make and keep clear records detailing their procurement process and rationale. This must be done for all procurement processes (direct award process 1, direct award process 2, the most suitable provider process, and the competitive process), when concluding a framework agreement, and when awarding a contract based on a framework agreement regardless of whether it was done with or without competition. This includes where a procurement process was abandoned or where the relevant authority decided to return to an earlier step in the process. Records must include:

• the name of the provider to which the contract has been awarded or the name of any provider who is a party to a framework agreement and either the address of their registered office or principal place of business
• the procurement process followed to select a providers, including details of the procedure used when the competitive process is followed
• the reasons for decisions made under the regulation
• particulars of any excluded or excludable providers
• the reasons for an excludable provider being excluded or not from a procurement process
• where a contract has been awarded or a framework agreement concluded with an excluded provider because it was considered necessary to protect public health, a description of this decision
• details of the individuals making decisions (this may be the name of a committee or job titles of individuals making the decision, as appropriate)
• any declared or potential conflicts of interest for individuals involved in the procurement process and how these were managed or will be managed
• where a procurement is abandoned, the date on which it was abandoned

Relevant authorities should ensure that records are kept when contracting for mixed procurements, including how the procurement meets the requirements for mixed procurements under this regime.

When following direct award process 2 or the most suitable provider process, records must also include a description of the way in which the key criteria (such as weighting, hierarchy, or more informal description of importance) were taken into account, and how the basic selection criteria were assessed when making decisions. This includes the relative importance of the key criteria that the relevant authority used to make a decision, the rationale for the relative importance of the key criteria, and the rationale for choosing the provider with reference to the key criteria.

When following the competitive process (including when concluding a framework agreement or when awarding a contract based on a framework agreement following the competitive process), records must also include a description of the way in which the key criteria were taken into account, the basic selection criteria were assessed, and contract or framework award criteria were evaluated when making a decision. We expect that this includes the relative importance of the key criteria that the relevant authority used to make a decision, the rationale for the relative importance of the key criteria, and the rationale for choosing the provider with reference to the key criteria.

When concluding a framework agreement, we expect that records include the terms and conditions that will be laid down by the framework agreement and which relevant authorities are included on the framework agreement.

When awarding a contract from a framework agreement, records should include which framework agreement the contract is being awarded from.

Relevant authorities must be aware that they may need to disclose information on the rationale for their decision-making under the regulations if a representation is made (see standstill period). We expect relevant authorities to keep their records for a period that is in line with their organisation’s record keeping policies and any applicable legislation.

Relevant authorities are also expected to keep records of their decisions and procurement processes when modifying a contract.

Keeping records of procurement processes in urgent circumstances

When awarding or modifying a contract in an urgent circumstance, relevant authorities must make and keep clear records detailing their procurement process and rationale. Records must include:

• justification for using the urgent circumstances exemption
• name of the providers to which the contract has been awarded and either the address of its registered office or principal place of business
• the approach taken to select a provider and the process followed (that is urgent award or modification)
• the estimated lifetime value of the contract or modification, and where the records refer to an urgent modification, any change in value or length of the contract
• details of the individual/individuals making the decision (this may be the name of a committee or job titles of individuals making the decision, as appropriate)
• any declared or potential conflicts of interest of individuals making the decision (not including individual names) and how these were managed or are to be managed

We expect that records are kept when contracting for mixed procurements, including how the procurement meets the requirements for mixed procurements under this regime.

Relevant authorities must publish a summary of their application of the regulations annually online (such as via the relevant authorities annual reports or annual governance statement). The first annual summary should relate to contracts awarded using the regulations between 28 October 2024 to 31 March 2025, and should be published no later than 6 months following the end of 2024 to 2025 financial year. Following the first annual summary, all other annual summaries must be published no later than 6 months following the end of the financial year to which it relates.

This must include, in the year to which the summary relates, the:

• number of contracts directly awarded under direct award process 1 and direct award process 2
• number of contracts awarded under the most suitable provider process
• number of contracts awarded under the competitive process
• number of framework agreements concluded
• number of contracts awarded based on a framework agreement
• number of framework agreements where a competitive process was completed to allow further providers to be party to the framework
• number of further providers (if any) that were selected to be party to the framework agreement
• number of urgent contracts awarded and urgent modifications (in line with the urgent awards or contract modifications section)
• number of new providers awarded contracts
• number of providers who ceased to hold any contracts with the relevant authority
• details of representations received, including:
  • the number of representations received in writing and during the standstill period in accordance with regulation 12(3)
  • a summary of the nature and outcome of those representations
• number of providers that were excluded from a procurement process
• number of providers that were excludable from a procurement process and of those the number that were excluded from a procurement process under regulation 21(3) or 22(4)

Relevant authorities must monitor their compliance with the regulations. The results of the monitoring must be published online annually (and may be integrated into other annual reporting requirements) and include processes, decisions made under the regulations, contract modifications, and declaration and management of conflicts of interests. Relevant authorities may use internal auditors to fulfil these requirements.

If a compliance report finds instances of non-compliance, relevant authorities must put in place actions to address this issue and to improve adherence with the regime.