Devolved contracting authorities under the Procurement Act 2023, explained

The key facts

• Procurement is largely a devolved matter, so the Procurement Act 2023 does not apply in the same way across England, Wales, Scotland and Northern Ireland.
• A devolved Welsh authority is defined by reference to section 157A of the Government of Wales Act 2006, or as an authority whose functions are exercisable wholly or mainly in Wales and do not relate to reserved matters, with section 111 of the Act carrying the definition.
• A devolved Welsh procurement arrangement arises where a devolved Welsh authority awards a framework, establishes a dynamic market, acts as a centralised procurement authority or leads a joint procurement.
• A transferred Northern Ireland authority, defined in section 112, is one exercising functions only in Northern Ireland that do not relate to reserved or excepted matters, along with public undertakings and private utilities operating only in Northern Ireland.
• A reserved procurement arrangement is any arrangement that is not devolved Welsh, transferred Northern Ireland or devolved Scottish.
• Devolved Scottish authorities are generally excluded from the application of the Act under section 2(5)(a), with the definitions in section 2(6) and 2(7), and Scotland continues to operate its own procurement legislation as defined in section 115(4).
• The Procurement Regulations 2024 create limited application to Scottish authorities where they take part in joint procurements with non Scottish authorities or use frameworks established by reserved authorities, with Schedule 9A listing the sections that apply.
• The national procurement policy statement does not apply to a procurement carried out under a devolved Welsh procurement arrangement or by a devolved Welsh authority, except for procurement under a reserved procurement arrangement; the Wales procurement policy statement applies instead.
• Contracting authorities carrying out a procurement under a devolved or transferred procurement arrangement are bound by the rules that apply to the contracting authority establishing the arrangement.

What this guidance is and who it applies to

This is one of the technical guidance documents published to support the Procurement Act 2023, and it deals with the question that sits underneath every cross border purchase: which rules apply to whom. It explains how the Act applies to contracting authorities across England, Wales, Scotland and Northern Ireland, and pays particular attention to devolved and transferred authorities that operate under different procurement frameworks. It is guidance for practitioners and does not replace the Act or the regulations, which should be read in full.

The starting point is that procurement is largely a devolved matter. The Welsh Government has the power to determine the rules by which certain procurements are conducted and contracts managed, and Scotland has its own procurement legislation. The Act therefore does not land uniformly across the United Kingdom, and the same buying organisation can find itself following different rules depending on the arrangement it is buying under.

The guidance is relevant to three kinds of reader. Devolved and transferred authorities that need to know which parts of the Act bind them, reserved authorities that buy jointly or lend frameworks across boundaries, and suppliers that operate in more than one nation and need to understand why the notices and the policy expectations are not identical.

The definitions that decide which rules apply

A devolved Welsh authority is defined by reference to section 157A of the Government of Wales Act 2006, or as an authority whose functions are exercisable wholly or mainly in Wales and do not relate to reserved matters, with a fifty per cent or more threshold used in assessing this. Section 111 of the Act carries the definition. A devolved Welsh procurement arrangement then arises where a devolved Welsh authority awards a framework, establishes a dynamic market, acts as a centralised procurement authority or leads a joint procurement.

A transferred Northern Ireland authority is defined in section 112. It covers authorities exercising functions only in Northern Ireland that do not relate to reserved or excepted matters, together with public undertakings and private utilities operating only in Northern Ireland. A devolved Scottish authority is one with functions exercisable only in Scotland, where none or only some of those functions relate to reserved matters, with the definitions set out in section 2(6) and 2(7).

A reserved procurement arrangement is defined by exclusion. It is any procurement arrangement that is neither a devolved Welsh, transferred Northern Ireland nor devolved Scottish arrangement. Section 114 deals with the classification of procurement arrangements and section 126 with territorial extent. These are not academic labels. The classification of the arrangement is what determines the rule set, the policy statement and the notice content that follow.

How the Act applies in Wales, Northern Ireland and Scotland

In Wales, devolved Welsh authorities follow the Act with modifications. The clearest difference is at policy level: the national procurement policy statement does not apply to a procurement carried out under a devolved Welsh procurement arrangement or by a devolved Welsh authority, except in relation to a procurement under a reserved procurement arrangement. The Wales procurement policy statement applies to devolved Welsh authorities instead. There are also differences in the content that must be included in notices published under the Act, and the Welsh Government has made its own procurement regulations which produce further differences. The guidance is explicit that the Welsh Government produces its own guidance on the Act and that devolved Welsh authorities should refer to it for further information.

In Northern Ireland, transferred Northern Ireland authorities follow the Act with specific exemptions. As in Wales, the national procurement policy statement does not apply to procurements under a transferred Northern Ireland procurement arrangement.

Scotland is the clearest departure. Devolved Scottish authorities are generally excluded from the application of the Act under section 2(5)(a), and Scottish procurement legislation, defined in section 115(4), continues to govern their procurements. Amendments made by the Procurement Regulations 2024 create a limited application of the Act where Scottish authorities participate in joint procurements with authorities that are not devolved Scottish authorities, or use frameworks established by reserved authorities. Schedule 9A lists the sections of the Act that apply in those circumstances, and regulation 47 of the Procurement Regulations 2024 deals with the Scottish modifications.

Cross border and joint procurement: who sets the rules

The operational rule is short and it resolves most of the practical questions. Contracting authorities carrying out a procurement under a devolved or transferred procurement arrangement are bound by the rules that apply to the contracting authority establishing the procurement arrangement. The arrangement carries the rules, not the buyer.

That means a reserved authority using a framework established by a devolved Welsh authority will be required to follow the rules applicable to Welsh devolved authorities, because it is participating in a devolved Welsh procurement arrangement. The same logic runs the other way: an authority joining a reserved arrangement follows the reserved rules, including the national procurement policy statement where it applies.

For suppliers, this explains an inconsistency that can otherwise look like an error. Two call offs from two frameworks, run by organisations that look similar, can carry different notice content and different policy expectations because the arrangements sit on different sides of the devolution line. The question to ask is never who is buying, it is who established the arrangement.

Practical application

Classify the arrangement before you design the procurement. Establish whether your organisation is a devolved Welsh authority, a transferred Northern Ireland authority, a devolved Scottish authority or none of these, and then establish which kind of arrangement you are buying under. Both answers should be recorded, because they drive the policy statement, the notice content and, in the Scottish case, whether the Act applies at all.

Where the answer is devolved Welsh, go to the Welsh material as well as the Act. The Wales procurement policy statement replaces the national statement, the Welsh Government has made its own procurement regulations, and the guidance directs devolved Welsh authorities to the Welsh Government's own guidance for further detail. Treating the UK level guidance as complete is the most likely source of error.

Where the procurement is joint or cross border, agree the applicable rule set in writing at the outset, before notices are drafted. The rule that the establishing authority's rules apply is simple to state and easy to overlook when a framework is used by a partner in another nation months after it was set up. Recording the classification with the framework itself saves that argument later. Enquiries on the guidance can be sent to procurement.reform@cabinetoffice.gov.uk.

How eSourcing Data helps

eSourcing Data lets teams record the classification that everything else depends on. The status of the authority, the type of procurement arrangement and the applicable policy statement can be captured against the procurement at the outset, so the decision about which rules apply is made once, documented and visible to everyone who joins the process later rather than being reconstructed from memory.

That classification can then drive the workflow. Notice content requirements differ between devolved Welsh and reserved arrangements, and the platform can hold separate templates and question sets so the right fields are completed for the right arrangement. Frameworks and dynamic markets can be tagged with the establishing authority and the rule set they carry, which is what call off users need in order to follow the correct rules when they buy from them.

Reporting matters most for organisations that operate on both sides of the line. Because arrangement type and authority status sit in the same record as the contracts, notices and evaluation evidence, commercial leads can see which parts of their pipeline sit under devolved rules and which under reserved rules, and can evidence that the correct regime was applied to each.

What to do about it

1. 1Determine and record whether your organisation is a devolved Welsh authority, a transferred Northern Ireland authority or a devolved Scottish authority, using the definitions in sections 111, 112 and 2(6) to 2(7).
2. 2Classify each procurement arrangement as devolved Welsh, transferred Northern Ireland, devolved Scottish or reserved before drafting notices.
3. 3Apply the Wales procurement policy statement, not the national procurement policy statement, to procurements by devolved Welsh authorities and under devolved Welsh procurement arrangements, except where the arrangement is reserved.
4. 4Read the Welsh Government's own guidance and procurement regulations alongside the Act where you are a devolved Welsh authority, because notice content and other requirements differ.
5. 5When joining a framework, dynamic market or joint procurement, confirm which authority established the arrangement and follow that authority's rules.
6. 6For Scottish involvement, check whether the limited application created by the Procurement Regulations 2024 applies, and which sections are listed in Schedule 9A.
7. 7Tag frameworks and dynamic markets in your systems with the establishing authority and the applicable rule set, so call off users apply the right regime.