Debarment: Reacting to the Changes under the Procurement Act 2023

In a previous article, we explored the upcoming changes to the debarment of bidders from contracts in the Procurement Act 2023 (the Act). This article explores some practical implications for contracting authorities and steps for contracting authorities to take in response.

The Act will place contracting authorities under a duty to report any issues that have resulted in a supplier being excluded from a procurement procedure. There will also be a centralised debarment list.

Confidentiality

Given that contracting authorities will be obliged to report incidents of exclusion to the Secretary of State, they will need to ensure that they can comply with their legal obligations, without breaching any agreement they may have with bidders or suppliers.

Contracting authorities must include provisions in their procurement documents and contracts. These provisions should allow for disclosures to comply with procurement legislation. This is necessary even if the information is meant to be kept confidential.

Suppliers may be sensitive about their confidential information, and may expect to see confidentiality provisions in public contracts but need to accept that this would not prevent disclosure of information where this is required by law.

Clauses providing for this should set out the circumstances when disclosure may be necessary, and they should also make it clear that there would be no remedy available to the supplier, should their information be disclosed in line with the legal requirement to do so.

Limitation of Liability

The introduction of the centralised debarment list will mean that exclusion could potentially have very significant consequences for the potential for suppliers to win public contracts. Contracting authorities should therefore make it clear in their procurements that any actions they take to exclude a supplier from bidding and notifying the Secretary of State, are necessary for compliance with their legal obligations. Contracting authorities should also make it clear that they accept no liability for any loss of opportunity or reputational damage that may arise as a result of a notification, under the Act.

If you have any questions regarding debarment, please contact the Geldards Public Sector Procurement Team