The basis upon which economic operators can be excluded from public procurement competitions is a controversial issue. Among the concerns giving rise to the need for rules in this area is the desire on the part of public authorities to ensure that tenderers who have a track record of poor performance, or have engaged in unlawful or other undesirable conduct, can be excluded from obtaining more public contracts.
The EU and UK regimes each provide for discretionary and mandatory grounds of exclusion, with the mandatory grounds generally reflecting very serious violations of law.
In the UK, the Procurement Act 2023 has somewhat expanded the grounds for exclusion from the prior regime, and employs the concepts of “excluded” and “excludable” suppliers. It also makes provision for exclusion by virtue of actions of a supplier’s sub-contractors and “associated” persons. The Act also introduces a centralised debarment list.