Background to the cross-border regulations
The Procurement Act 2023 (2023 Act) came into effect on 24 February 2025 and governs public procurements conducted by contracting authorities in England, Wales, and Northern Ireland from that date.
It does not generally apply to public procurements by "devolved Scottish authorities", which remain subject to Scottish procurement law including the Public Contracts (Scotland) Regulations) 2015 and the Utilities Contracts (Scotland) Regulations 2015 ("Scottish Procurement Legislation").
Devolved Scottish authorities are defined in the 2023 Act as contracting authorities or regulated utilities "whose functions are exercisable only in or as regards Scotland" and do not exercise any functions that are matters reserved to Westminster under the Scotland Act 1998, or exercise a mix of reserved and devolved functions. They include, for example, the Scottish Government (and its executive agencies and NDPBs), as well as local authorities and regulated utility companies that operate only in Scotland.
However, there is an important exception to the general rule that the 2023 Act does not apply to devolved Scottish authorities, which is set out in section 115A of the 2023 Act.
Section 115A provides that the 2023 Act applies in full where a devolved Scottish authority wants to award a contract under:
- a joint procurement with a body based in England, Wales or Northern Ireland that is itself subject to the 2023 Act (a "UK body"); or
- a procurement conducted by a UK body that is acting as a centralised procurement authority.
It also covers the more common situation where a devolved Scottish authority wants to award a contract under a framework (or a dynamic market) that has been established by a UK body, for example the Crown Commercial Service. In such a situation, the devolved Scottish authority needs to comply with the majority of the applicable provisions of the 2023 Act. We explored the implications of this position for devolved Scottish authorities in our webinar on The Procurement Act 2023: what are the implications for Scotland? | DWF Group.
What do the cross-border regulations achieve?
The Cross-Border Public Procurement (Miscellaneous Amendment) (Scotland) Regulations 2025 (“the Cross Border Regulations”), came into force on 20 December 2025. They amend the Scottish Procurement Legislation to clarify the following key points: -
- Resolution of competing/overlapping regimes: When a devolved Scottish authority procures under a UK procurement arrangement (e.g. a framework or dynamic market established by a UK body), the Scottish Procurement Legislation is now largely disapplied, removing the issue of devolved Scottish authorities having to comply with overlapping Scottish and UK duties when conducting such a procurement.
- Enabling UK bodies to use Scottish procurement arrangements: When a UK body carries out a procurement under a Scottish procurement arrangement (e.g. a framework established by a devolved Scottish authority), the provisions of the Scottish Procurement Legislation will apply (to the extent stated in the Cross-Border Regulations).
Impact of the cross-border regulations
The Cross-Border Regulations represent meaningful progress in clarifying cross-border procurement rules. By removing overlapping regulatory obligations when a devolved Scottish authority procures under a joint procurement with a UK body, or under a Framework or Dynamic Market established by a UK body, the Cross Border Regulations clarify the applicable legal rules.
However, some issues remain unresolved.
A key limitation is that the Cross-Border Regulations cannot disapply the 2023 Act where a UK body wishes to procure under a Scottish procurement arrangement, such as a Scottish framework. The ability to disapply the 2023 Act in such circumstances lies with the UK Government.
This means that, while the legal position has been clarified for Scottish authorities that wish to use UK procurement arrangements, UK bodies that wish to procure through Scottish frameworks will need to await further UK legislation if they want to avoid having to comply with overlapping duties under both the 2023 Act and the Scottish Procurement Legislation.
Further changes
Alongside these changes, the Scottish Government has recently closed a consultation on amending procurement thresholds under the Procurement Reform (Scotland) Act 2014. The proposals include increasing the threshold value at which lower-value goods, services and works will be regulated under the 2014 Act and lowering the threshold at which authorities need to consider applying community benefit requirements to their contracts. The results of the consultation and any associated legislative changes are expected during 2026.
More broadly, the European Commission is also expected to publish a new Public Procurement Act in 2026. While this EU legislation will not have effect in the UK, it is likely to have implications for potential future procurement reform in Scotland, given that Scottish Procurement Legislation continues to be based on the existing EU Public Procurement Directives that will be replaced by this new EU legislation.
