Following a consultation by the Scottish Government, the Public Contracts (Scotland) Regulations 2012 and the Utilities Contracts (Scotland) Regulations 2012 have now been published. The Regulations update their 2006 predecessors and include amendments relating to the Bribery Act 2010. These amendments have the effect of excluding those convicted of certain offences under the Bribery Act from bidding for public sector contracts. The Regulations will enter into force on 1 May 2012.

The Bribery Act 2010 creates four separate offences:

  • offering, promising or giving a bribe;
  • requesting, agreeing to receive or accepting a bribe;
  • bribing a foreign public official; and
  • failure of a commercial organisation to prevent bribery by those acting on its behalf.

The new Regulations require public bodies to exclude tenderers from a procurement process if the body has knowledge that the business, its directors or any other person who has powers of representation, decision or control over the company have been convicted of the second and third offences listed above under the Bribery Act.

Under the first three offences, conviction requires conduct amounting to bribery to have occurred. However, the fourth offence noted above does not require actual conduct amounting to bribery by the business. Therefore, previous lobbying activities have pressed that public bodies should not be required to exclude a potential tenderer convicted for this offence. The new Regulations, while mindful of this position, create a discretionary power for public authorities to debar tenderers who have been convicted of this offence. While debarment in such an instance is discretionary, the consequences for companies could be severe. Unlike individual criminal convictions, corporate convictions do not become 'spent' after a period of time. A conviction under the Bribery Act could have the practical effect of prohibiting an organisation from any further public procurement contract opportunities indefinitely. The changes to the Regulations bring Scotland into line with the law in England and Wales.

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