A key change under the new procurement regime is the introduction of a single public debarment list. In summary, this list will be maintained by the UK government and comprise of suppliers who will be barred from competing for future procurements projects. The debarment list will contain both “excluded suppliers” (those on the debarment list by virtue of a mandatory exclusion ground (section 57(1)) and “excludable suppliers” (those on the debarment list by virtue of a discretionary exclusion ground (section 57(2)). Both “excluded suppliers” and “excludable suppliers” on the debarment list will be automatically barred from securing a public contract.
How will the debarment list work?
Suppliers may be added to the debarment list provided the following are satisfied (section 61):
- A minister conducts an investigation into the supplier;
- The minister is satisfied that an exclusion ground applies; and
- A Minister of the Crown has considered the findings and is satisfied that the supplier should be added to the debarment list.
Suppliers will be given notice that such an investigation is happening and the opportunity to make representations (section 57(3)).
Suppliers must be given notice of the debarment decision which sets out the minister’s reasoning, along with an explanation of the supplier’s right to appeal. Suppliers will also be given a copy of the investigation findings published in a public report.
However, suppliers should note than an entry into the debarment list is not permanent and the length of time the exclusion applies will be stated in the list.
Challenging the debarment decision
Suppliers can appeal against a debarment decision. However, the challenge may only be brought on the ground that, in making the decision, the minister made a material mistake of law (section 65(2)(b)). This challenge can only be made within 30 days and compensation is limited to the wasted costs incurred tendering for the contract that it was excluded from.
Suppliers will be able to apply at any time for their removal from the debarment list provided there has been a material change of circumstances or if accompanied by significant information that has not previously been considered.
The introduction of the debarment list will certainly provide contracting authorities with additional protection against contracts being awarded to unsuitable suppliers. Contracting authorities should be able to simply identify unfit by reference to a central list. However, the consequences of exclusion have been amplified for suppliers; inclusion on the debarment list may be highly damaging particularly for suppliers that repeatedly bid for government contracts since a single exclusion decision could lead to exclusion from other wider public bids.