The Procurement Act 2023 (the Act) brings significant changes to the UK procurement regime and was originally intended to come into force in October 2024. However, in a statement made on 12 September, the UK Government confirmed a delay until February 2025.

The Act is intended to simplify the procurement regime and increase transparency in the award of public contracts for works, goods and services. It represents a major change from existing procurement rules which are based on EU procurement law.

However, the Act coming into force will have limited effect on Scottish RSLs, because the Act excludes “devolved Scottish authorities” from its application. “Devolved Scottish authorities” are defined as Scottish contracting authorities whose functions are exercisable only in or as regards Scotland, and none of their functions relate to reserved matters, or only some of their functions relate to reserved matters and some do not.

Therefore the procurement by Scottish RSLs of public contracts for works, supplies and services will continue to be governed by:

• the Procurement Reform (S) Act 2014:
• the Public Contracts (S) Regulations 2015 (and in limited circumstances the Utilities Contracts (Scotland) Regulations 2016); and
• the Concession Contracts (Scotland) Regulations 2016).

As such, can RSLs breathe a sigh of relief, safe in the knowledge that the status quo will remain north of the Border? As is often the case, the answer is yes and no.

Yes, the application of the Scottish procurement rules to Scottish public contracts will remain – but the new legislation creates questions over cross-border procurement, for example national frameworks from which contracting authorities from all parts of the UK may call off, e.g. Crown Commercial Services frameworks.

The Act contains provisions at section 115 allowing regulations to be made to facilitate intra-UK access to frameworks, dynamic purchasing systems etc so that Scottish contracting authorities can continue to access these, and the UK Government has issued draft regulations governing cross-border procurement. These regulations confirm that, where a devolved Scottish authority acts alone, or with other devolved Scottish authorities, in awarding a contract in accordance with a framework, certain provisions of the Act do not apply – thereby avoiding two regimes governing the same procurement.

However, the coming into force of the new Act will represent a further divergence in English and Scottish procurement law. This could lead to confusion amongst bidders and contracting authorities in relation to cross-border matters.

If you have questions around procurement law in Scotland please contact our team.