Scottish Government publishes long-awaited clarifications to Scottish procurement rules

The Scottish Government has published draft Cross-Border Public Procurement (Miscellaneous Amendment) (Scotland) Regulations 2025. These “CB Regulations”, which will come into force on 20 December 2025, amend Scottish public procurement rules to take account of the Procurement Act 2023, which came into force across the UK on 24 February 2025.

Background

The Procurement Act applies to contracting authorities (that is, broadly, to public sector buyers) that are not “excluded authorities” – a category which includes any “devolved Scottish authority”. So a Scottish local authority is not subject to the Procurement Act but remains subject to the Public Contracts (Scotland) Regulations 2015 (the “PCSRs”). Meanwhile a non-devolved contracting authority (such as HMRC) will be subject to the Procurement Act, including when operating in Scotland.

Section 115A of the Procurement Act (a provision belatedly added to the Act in 2024) specifically provides that where a devolved Scottish authority purchases alongside a UK contracting authority or purchases from a framework or dynamic market awarded by a UK contracting authority (in each case a “procurement arrangement”), the Procurement Act will apply to that devolved Scottish authority’s procurement process.

However that provision does not disapply the PCSRs in those circumstances, with the effect that a devolved Scottish authority buying from a non-Scottish procurement arrangement would have to ensure compliance with bothsets of rules. It was also not clear whether and how UK contracting authorities could access Scottish frameworks.

Back in February 2025, a week before the Procurement Act came into force (itself a commencement delayed by several months from its originally planned date) we wrote here that the UK Government had announced that the Scottish Government “intends to make its own regulations to disapply, where appropriate, Scottish procurement legislation in order to permit devolved Scottish authorities to procure under the Act [and] to ensure that contracting authorities that are not devolved Scottish authorities can access commercial arrangements established under Scottish procurement legislation”.

The CB Regulations

The Cross-Border Procurement Regulations will now finally do just that. They amend the PCSRs to make it clear that:

• Where a UK contracting authority carries out a procurement under a devolved Scottish procurement arrangement (for example where it buys off a Scottish framework) the PCSRs will apply to that purchase (with some modifications in the case of frameworks or dynamic purchasing systems) (the Scottish Government has the power to apply the PCSRs to UK contracting authorities in these circumstances under section 115(3) of the Procurement Act); and
• Where a devolved Scottish authority carries out a procurement under an English, Welsh or Northern Ireland procurement arrangement, the PCSRs (and, indeed, the Procurement Reform (Scotland) Act 2014) will, generally, not apply to that procurement.

Similar modifications have been made to the Utilities Contracts (Scotland) Regulations 2016 (which apply to procurement by certain utilities) and the Concession Contracts (Scotland) Regulations 2016 (which apply to contracts that take the form of concession arrangements).

Comment

The CB Regulations, after a long wait, finally clear up an unsatisfactory by-product of a lack of coordination between post-Brexit reforms to procurement rules outside Scottish devolved competence and reforms to those within that devolved competence. It is clear now that when a devolved Scottish authority buys from a non-Scottish procurement arrangement it will be taking itself out of the PCSRs as well as into the Procurement Act. It is also clear that when a UK contracting authority – which may be a purely English, Welsh or Northern Irish authority, such as an English local authority – buys from a devolved Scottish procurement arrangement, it will be subjecting itself to the PCSRs.

Yet complete clarity remains out of reach, because what the CB Regulations do not do (and cannot do) is disapply the Procurement Act where UK contracting authorities procure using devolved Scottish procurement arrangements. That is a power held by the UK Government under section 115(2) of the Act. So while devolved Scottish authorities using UK frameworks (for example) go from being subject to two overlapping regimes to just one, UK contracting authorities buying from Scottish frameworks go from being subject to just one regime, to two.

And so the onus once again moves to the UK Government to add the final piece in the puzzle and amend the Procurement Act to disapply it in cases where UK contracting authorities buy from devolved Scottish procurement arrangements. Hopefully that will be a shorter wait.

If you would like to discuss how these changes, or recent and ongoing reforms to public procurement rules more generally, affect your organisation please contact Jamie Dunne, Charles Livingstone, or your usual Brodies contact.