For companies who undertake significant public contracting work and who experience a corruption incident, one important consideration in the resolution and reporting of the incident is likely to be the impact that any enforcement action may have on their eligibility to be selected as a contractor under the EU public procurement regime. Under the debarment provisions as they stood until yesterday, companies convicted of certain types of offence (including bribery) faced mandatory debarment for an indefinite period, whilst other types of conduct triggered discretionary debarment.
There has long been a concern that the regime has a chilling effect on the willingness of companies to self-report criminality and, in particular, to plead guilty (should that otherwise be an appropriate course). Indeed, there was some recognition of the disproportionate effect that the mandatory debarment rules can have when the Bribery Act 'corporate offence' (the section 7 offence of failing to prevent bribery) was added to the list of UK offences which trigger discretionary, rather than mandatory, debarment.
Important changes have now been made to the UK procurement regime, pursuant to the Public Contracts Regulations 2015, which entered into force yesterday. These include a number of significant changes to the debarment regime, on the one hand expanding the debarment grounds, and on the other introducing time limits on debarment and a self-cleansing regime.