Bribery Act 2010 and public procurement

At the end of last month it was announced that the Bribery Act 2010 will come into force in July of this year. As readers may be aware, the Act essentially codifies what was previously rather a hotch potch and outdated collection of statutory and common law offences relating to bribery and corruption. It also introduces a new offence known as the section 7 offence whereby a company which fails to have adequate procedures in place to prevent bribery can itself be convicted of the criminal offence of failure to prevent bribery.

One of the interesting questions from a public procurement perspective has been the issue of how the Bribery Act 2010 will be cross-referenced into regulation 23(1) of The Public Contracts Regulations 2006 (the Regulations) which deals with mandatory exclusion criteria. Regulation 23(1) in its current form requires a contracting authority automatically to exclude any bidder which has a conviction for the offence of bribery or for corruption under the Public Bodies Corrupt Practices Act 1889 or the Prevention of Corruption Act 1906; these two statutes will be repealed in full when the Bribery Act 2010 comes into force.

We can therefore expect to see updated drafting of regulation 23 to reflect the Bribery Act 2010; a consultation is expected to be held shortly on how this should be achieved.

Given that conviction for the offence of bribery is a case for mandatory exclusion at present we presume that the two new basic offences under sections 1 and 2 of the Bribery Act 2010 (broadly speaking offences relating to bribing or accepting a bribe) will remain in the mandatory exclusion category although this has not been formally confirmed.

The interesting angle is that Kenneth Clarke MP has confirmed that a conviction for the new section 7 corporate offence of failure to prevent bribery will not require mandatory exclusion by contracting authorities - rather they will be permitted to exercise their discretion as to whether to accept the bid or not under regulation 23(4). It is expected that guidance will be published on how contracting authorities might approach the exercising of this discretion.

We will post further updates once the consultation is published.

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