Procurement in a Nutshell – Debarment
7th March, 2024
This Nutshell will analyse the new obligations on contracting authorities in relation to Debarment List, drawing attention to any key changes from previous procurement legislation which contracting authorities ought to be aware of.
This evaluation supplements our previous edition of Procurement in a Nutshell titled Exclusions.
Introduction
On 26th October 2023 the Procurement Bill received Royal Assent and is now expected to come into force in October 2024.
The Act will, in particular, revoke the following:
- Public Contracts Regulations 2015 (PCR)
- Concession Contracts Regulations 2016
- Utilities Contracts Regulations 2016
What’s new?
The Government will publish, and maintain, a central list of suppliers who are debarred from bidding for public contracts for a specified period. Suppliers will be added to the debarment list if the relevant Minister conducts an investigation into the supplier, is satisfied that the exclusion grounds apply, and decides that the supplier should be added to the list (Section 60).
Suppliers will be given notice of an investigation and will have an opportunity to make representations. During the investigation the relevant Minister may ask the supplier to provide certain documents. A failure to comply with any such request to the Minister’s satisfaction can itself give rise to a separate mandatory exclusion ground if the Minister considers the failure to be sufficiently serious.
Following an investigation, the Minister must give the supplier notice of a debarment decision, which triggers an 8 day standstill period under Section 62(6). During the standstill period, a supplier can commence proceedings to suspend the entry of its name onto the list (Section 63). Suppliers can also appeal a decision to place them on the list, and can apply for removal, where there is a material change in circumstances or significant new information (Section 64).
If a supplier is on the debarment list, they are considered an “excluded supplier”, and therefore contracting authorities must exclude them from participating in the procurement process (Section 57).
Contracting authorities should also note that when a tender is disregarded or the supplier excluded, replaced or removed, they must, give notice of that fact to the relevant appropriate authority (Section 59). Notice must be provided within 30 days beginning with the day on which the tender was disregarded or the supplier excluded, replaced or removed.
What’s changed?
The Debarment List is an entirely new consideration with regards to exclusions during a procurement process. It affords the Government the ability to debar suppliers, which automatically requires contracting authorities to exclude such a supplier’s participation.
What does this mean?
As the Debarment List broadens the exclusion grounds, contracting authorities should review, and update, their internal policies and processes to ensure they thoroughly assess whether suppliers are debarred from engaging in the procurement process.
For further information please contact Melanie Pears or Tim Care in our Public Sector Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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