Having received Royal Assent on 8 April 2011, the much anticipated Bribery Act 2010 came into force in England and Wales on 1 July 2011. The Act has an indirect effect on the public sector both in terms of potential liability and the knockon effects on procurement.
Local authorities should be mindful of the offence under section 2 where a person “requests, agrees to receive or accepts” an advantage of some kind in return for improperly performing, or allowing the improper performance of, a “function or activity” where that function/activity is either of a public nature or done in the course of a business. The Act makes it clear that if this offence is committed with the consent/connivance of a senior office of the local authority, then that person is also personally guilty of an offence.
Turning specifically to procurement issues, Ministry of Justice guidance has confirmed that any organisation convicted under section 7 for failing to prevent bribery will not be automatically barred from participating in tenders for public contracts under Regulation 23(1) of the Public Contracts Regulations 2006. However public authorities will retain the discretion to exclude such organisations. To avoid embarrassment, local authorities may wish to address in public contracts the consequences of a supplier being found guilty of a Bribery Act offence. While public authorities are not the central focus of the Act, it is an issue to be ignored at the local authority’s peril.