The debarment list

In this Procurement UnpACked, we explore one of The Procurement Act 2023’s more dramatic changes: the introduction of the debarment list - a public register of suppliers barred from participating in public procurements.

The debarment list has been created with a view to protecting the public purse from suppliers considered to be a risk, and to promote compliant and ethical supplier behaviour. Following the criticism of the Government’s award of contracts to Fujitsu despite their involvement in the Post Office scandal, it's easy to see the motivation behind the list.

The idea is that due diligence on a contracting authority’s part, which feeds into the debarment list, will benefit the public sector as a whole; however, this must be balanced with thorough processes and robust decisions to avoid suppliers being unfairly debarred. 

For contracting authorities, it is important to understand notification obligations, how to efficiently use the List and to cooperate with the Procurement Review Unit (PRU), who manage the list.

What are your obligations?

Contracting authorities are required to:

• Automatically exclude suppliers entered onto the debarment list because of a mandatory exclusion ground.
• Consider discretionary exclusion for suppliers entered onto it because of a discretionary exclusion ground.
• Exclude suppliers not otherwise entered onto the debarment list as appropriate, where, following robust due diligence, it is determined that grounds apply and (in the case of discretionary grounds) it is considered reasonable to do so.
• Notify the PRU within 30 days of excluding, replacing or removing a supplier from a procurement, including the applicable exclusion ground(s).
• Cooperate with the PRU by providing documents and/or other assistance requested during investigations.

In light of the potential significant consequences for suppliers should they be excluded and ultimately debarred, contracting authorities are likely to see more concerns and challenges raised following a decision to exclude. It is therefore important for contracting authorities to ensure that they follow robust processes in considering potential exclusions and keep appropriate records of decisions made and rationales behind them.

When can the PRU investigate?

The PRU can investigate and determine whether to place a supplier on the debarment list in two circumstances:

1. Following notification by a contracting authority that they have excluded, replaced or removed the supplier from a procurement.
2. Following an investigation by the PRU of its own volition, e.g., after a corporate crime case or third-party referral.

What should contracting authorities be doing?

Contracting authorities should:

• Follow thorough and robust processes when considering the exclusion of suppliers, to include keeping records of decisions made and reasons for them;
• ensure they comply with their obligations to notify the PRU of exclusions within 30 days;
• review the Debarment List regularly and at an early stage in all procurement processes to prevent delays further down the line; and
• be prepared to co-operate with and provide information to the PRU as part of their investigations.

For more information

If you would like to discuss issues around exclusion and the debarment list, please contact Amy Callahan-Page.