Provisions relating to bribery in the field of contracts and public procurement are not new. For example, the Public Contracts (Scotland) Regulations 2006 (as amended) (the Regulations) and its English counterpart have long included a mandatory requirement for Contracting Authorities to exclude economic operators (whether that be contactors, service providers or suppliers) from tendering for a public contract where the authority has actual knowledge that the operator (or any of its directors or any other person with powers of representation, decision or control) has been convicted of specific criminal offences.
Regulation 23(1) (c) of the Regulations includes the offence of bribery or corruption within the meaning of sections 68 and 69 of the Criminal Justice (Scotland) Act 2003 (CJS Act). The English Regulations refer to the general criminal offence of bribery.
According to recent Guidance published by the Office of Government Commerce, as a minimum authorities should seek a declaration from economic operators – as a corporate entity and to all those who represent it – in the PQQ or ITT as appropriate, confirming they have not been convicted of bribery or any other offence referred to in the Regulations, before it is invited to tender for a contract, and such declarations are now commonplace.
However, further to our e-update of 9 April – The UK Bribery Act 2010 – What You Need to Know – sections 68 and 69 of the CJS Act are to be repealed and replaced by the new comprehensive offences covered by the Bribery Act 2010 (the Act) when the Act comes into force later this year.
To assess the impact of the Act in procurement terms, the OGC has commenced discussions with the European Commission and other Member States and those discussions may impact on the mandatory exclusion of economic operators and the steps authorities can take to ensure compliance.
However, until the outcome is known and further guidance is issued by the OGC or the Scottish Procurement Directorate, authorities should ensure they have in place clear and unambiguous anti-bribery policies and safeguards to prevent bribery offences being committed, as a matter of best practice and in preparation for the Act's Royal Assent. In due course it may also be necessary for authorities to review and amend pre-qualification documentation and also amend anti-bribery policies following the publication of Government Guidance relating to the meaning of adequate measures.
Likewise, private sector organisations which rely heavily on public contracts should consider taking a number of steps including reviewing their current practices, updating their anti-bribery procedures, internal monitoring and employee training and - if they do not already have one - produce a detailed policy. A conviction under the Act could have a long-term and damaging effect on the ability to tender for publicly funded contracts.
Whether you are in the public or the private sector, organisations are encouraged to seek guidance at the earliest opportunity.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
