MFMac previously provided commentary to the draft regulations here. Below is a summary of the key updates:
Reserving the Right to Participate in Procurement by Type of Organisation
Contracting authorities will now be able to reserve certain health and social care procurements for “qualifying organisations”, as identified by specific CPV codes set out in SPPN 2/2026 (gov.scot). This will allow contracting authorities to limit who can tender for certain services, provided the services relate to functions delegable under the Public Bodies (Joint Working) (Scotland) Act 2014 or functions exercised by the relevant health boards under the National Health Service (Scotland) Act 1978.
The Scottish Government has issued the above SPPN to assist contracting authorities in assessing whether an organisation meets the statutory definition of a "qualifying organisation". An organisation will qualify if it satisfies all of the following:
- Its sole purpose is to deliver benefits for society or the environment.
- It has not been established by an enactment, nor subject to control by a person established by an enactment.
- Its profits are reinvested to further its socially or environmentally beneficial aims, or are distributed to the community it exists to serve.
The Scottish Ministers have the power to vary this definition.
In practice, "qualifying organisations" will typically include charities, voluntary organisations, social enterprises and registered social landlords. Public sector organisations, agencies or non-departmental public bodies are excluded. Contracting authorities should undertake appropriate due diligence to determine whether an organisation meets the statutory test.
Delegation of Functions
The Act grants Scottish Ministers greater flexibility to delegate certain responsibilities under Part 1 of the Regulation of Care (Scotland) Act 2001 to local authorities or other authorised persons to such an extent that Scottish Ministers may decide.
New Guidance & Reporting Requirements
The Act requires Scottish Ministers to publish guidance and strategies aimed at improving fairness and quality in care services, including:
- Ethical Commissioning Guidance
Guidance that addresses the fair treatment of workers engaged in the provision of care services. - Fair Work Strategy
A sector-wide strategy setting out:
• Clear standards for 'fair work';
• Data collection and review processes;
• Measures for addressing areas of improvement - e.g., issuing guidance on what constitutes good practice. - The first strategy must be published within 18 months of the Regulations coming into force.
- Report on Fair Work
A report setting out:
• Progress towards fair work in the care sector;
• Analysis of any improvements;
• Explanation and next steps where progress is limited. - National Chief Social Work Adviser and National Social Work Agency
In addition to this, a National Chief Social Work Adviser will report annually on the state of social work services and the workforce. A National Social Work Agency will also be established to support this work.
From April 2026: Market Transparency
From 1 April 2026, further provisions are due to come into force which will require Scottish Ministers to publish a report on the state of the Social Care Market, including:
- The types of organisations delivering services (e.g., not-for-profit bodies, public bodies or third sector bodies);
- The level of profit being made by operators in the market; and
- The tax status of the operators.
Observations
The Act marks a significant step towards reforming how health and social care services are delivered in Scotland. The changes reflect a clear policy direction focused on:
- Fairness and Workforce Standards – Through mandatory ethical commissioning guidance, a sector-wide Fair Work Strategy, and annual reporting, the Act aims to embed fair treatment and accountability across the care sector.
- Market Transparency – From April 2026, new reporting obligations will provide greater visibility into the structure and profitability of the social care market, supporting informed policy decisions and public confidence.
- Flexibility and Collaboration – By enabling reserved procurement for qualifying organisations and expanding Ministers’ powers to delegate functions, the framework encourages closer partnership between public and third sector bodies.
Overall, these measures are designed to promote transparency, and collaborative delivery models, while ensuring that care services remain aligned with societal and environmental objectives. As previously noted, the changes do not provide wholesale delivery of the recommendations in the Feeley report, they represent a step forward.
