Earlier this week, my colleague Dr Steven Brunning and I held a webinar to outline the main changes to the exclusions provisions that the Procurement Act 2023 (the Act) will introduce when it comes into force on 28 October 2024. We also discussed the brand-new debarment list in detail, including the routes for suppliers to obtain an injunction to prevent their name from being entered onto the list and their wider rights to appeal or challenge by way of legal proceedings.

Attendees joined us from several sectors including local government, housing and health and social care and represented both contracting authorities and suppliers who wanted to find out more.

If you weren't able to join us, we have summarised our key takeaways below.

Key takeaways for contracting authorities (CAs)

1. Take time to familiarise yourself with the expanded scope for exclusions, and note that there will be more opportunities to exclude underperforming suppliers. 
2. You may find yourselves involved in more detailed investigations regarding the exclusion of suppliers because suppliers will know that the outcome could be the appropriate authority investigating and deciding to enter their name onto the debarment list. You should therefore consider in advance what information could be relevant, proportionate and helpful to request from suppliers when considering whether an exclusion ground is ‘continuing or likely to occur again’ (a key part of the test for deciding whether a supplier is an ‘excluded or excludable' supplier’).
3. Undoubtedly, there will be greater scrutiny of key performance indicators (KPIs). CAs need to be careful to pitch these at an appropriate level, as suppliers will be more selective about what contracts (and KPIs) they’re willing to bid for against the backdrop of extended poor performance exclusion grounds. CAs should aim to set out realistic and achievable KPIs.
4. Remember to notify the appropriate authority where a tender is disregarded, a supplier is excluded, replaced or removed (including the replacement of an intended sub-contractor or associated person), or where legal proceedings are issued or concluded, within 30 days.
5. Review the debarment list against supplier names early on in the procurement process, to prevent delays further down the line.

Key takeaways for suppliers

1. Self-cleaning will be more important than ever because these factors must be considered by CAs when determining whether the supplier is an excluded or excludable supplier. Also, there are limited opportunities and grounds to challenge decisions to enter suppliers onto the debarment list (and other relevant decisions). Review appropriate steps such as updating training, policies and reviewing corporate governance.
2. In advance of the Act coming into force, review your corporate structures to identify any associated or connected persons (with reference to the meanings within the Act), and whether any potential exclusion grounds apply to them. Finally, seek to self-clean as far as possible.
3. Keep intended sub-contractors under review by checking the debarment list. New agreements signed with intended sub-contractors should include provisions to allow easy termination – or use of other sub-contractors – where the intended subcontractor is entered onto the debarment list or otherwise is an excluded or excludable supplier.
4. Carefully consider KPI requirements at the outset and prior to bidding – are they realistic and achievable, or are they set so high as to expose you to the risk of poor performance?
5. Consider keeping an eye on competitors and whether they or their sub-contractors are entered onto the Debarment List – this may be a strong argument when challenging a contract award to them.

Want to know more?

If you would like a copy of the recording for this or other webinars that we have presented on the Procurement Act 2023, please contact us. Do also look out for our next webinar on 14 June about procedures under the Act, and our guide being published soon on updating contract procedure rules. 

Otherwise, if you have any questions about how the changes to the exclusions provisions or introduction of the debarment list may impact your organisation, or you would like advice on how best to prepare for the Act coming into force, please get in touch with Amy Callahan-Page or Dr Steven Brunning.