Following a consultation by the Scottish Government, the Public
Contracts (Scotland) Regulations 2012 and the Utilities Contracts
(Scotland) Regulations 2012 have now been published. The
Regulations update their 2006 predecessors and include amendments
relating to the Bribery Act 2010. These amendments have the effect
of excluding those convicted of certain offences under the Bribery
Act from bidding for public sector contracts. The Regulations will
enter into force on 1 May 2012.
The Bribery Act 2010 creates four separate offences:
offering, promising or giving a bribe;
requesting, agreeing to receive or accepting a bribe;
bribing a foreign public official; and
failure of a commercial organisation to prevent bribery by
those acting on its behalf.
The new Regulations require public bodies to exclude tenderers
from a procurement process if the body has knowledge that the
business, its directors or any other person who has powers of
representation, decision or control over the company have been
convicted of the second and third offences listed above under the
Under the first three offences, conviction requires conduct
amounting to bribery to have occurred. However, the fourth offence
noted above does not require actual conduct amounting to bribery by
the business. Therefore, previous lobbying activities have pressed
that public bodies should not be required to exclude a potential
tenderer convicted for this offence. The new Regulations, while
mindful of this position, create a discretionary power for public
authorities to debar tenderers who have been convicted of this
offence. While debarment in such an instance is discretionary, the
consequences for companies could be severe. Unlike individual
criminal convictions, corporate convictions do not become
'spent' after a period of time. A conviction under the
Bribery Act could have the practical effect of prohibiting an
organisation from any further public procurement contract
opportunities indefinitely. The changes to the Regulations bring
Scotland into line with the law in England and Wales.
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