Constructing Rules on Exclusions (Debarment) Under a Post-Brexit Regime on Public Procurement: A Preliminary Analysis

Abstract

This current initiative to reform public procurement after Brexit raises the question of how to deal with exclusions (debarment) in the UK legal system. This area has received little attention in the past but Brexit offers both more legal flexibility and a political opportunity to address the topic. Against this background and to inform and stimulate the reform debate this paper identifies the key issues and make some preliminary recommendations for the post-Brexit exclusion regime. The paper argues, first and foremost, that there is a strong argument for a more centralised approach. Such an approach, if properly operated and resourced, can potentially have many benefits in addressing corruption and other policy problems, in improving performance of public contracts and in providing better protection for suppliers. More specifically the paper, first, argues that there should be centrally-administered mandatory exclusions for integrity breaches, which should cover wider grounds than current mandatory exclusions and should not be limited to cases where the supplier has a criminal conviction or other formal judgment against it. The paper also considers certain issues relating to the detail of such exclusions, including the role of the central agency, and coordination with the criminal justice system. The paper also discusses the potential role of centralisation in relation to exclusions for poor past performance, arguing that centralisation also has an important role in this area, too, as well as in helping individual procuring entities to assess suppliers’ technical competence. The paper also proposes setting up a general framework for mandatory exclusions in other policy areas that might be considered suitable for mandatory exclusions in future. Finally, it examines the extent to which discretionary exclusions for individual entities should be retained or added to the legal regime against the background of the paper’s proposals for mandatory exclusions.