The Procurement Act 2023 came into force in October 2024. Designed to simplify, modernise and increase transparency in how public sector contracts are awarded, it represents not only a significant overhaul of public procurement law, but also presents new risks to UK businesses from a compliance perspective; in an environment already complicated by the introduction of the Economic Crime and Corporate Transparency Act 2023 (ECCTA).
Our Public law, Procurement, and Business Crime and Investigations teams explore how the legislation overlaps; and detail why businesses reliant on public tenders can be optimistic about the changes to come, and seize the opportunity for competitive compliance.
Key changes under the Procurement Act
The Act consolidates and replaces existing EU-derived regulations with a single, UK-specific framework. Key features include:
- Enhanced transparency obligations: requiring contracting authorities to publish detailed information on procurement decisions and contractual performance.
- A publicly accessible central debarment list: listing suppliers who have been excluded from participating in public procurement due to serious misconduct, including criminal convictions.
- Stronger focus on supplier performance: The legislation places increased emphasis on monitoring supplier performance, with provisions allowing for the exclusion of suppliers based on past poor performance.
- Embedding of social value considerations: The Act encourages social value considerations to be a part of procurement decisions, encouraging contracts that deliver broader societal benefits, such as environmental sustainability and community development.
These reforms are therefore not just procedural; they aim to embed integrity, accountability, and ethical compliance at the heart of public procurement.
The ECCTA and the need for competitive compliance
The Procurement Act comes hot on the heels of the ECCTA, in force, in phases, from December 2023. The ECCTA introduces new routes to corporate criminal liability, including, from September, the ‘failure to prevent fraud’ offence for large organisations, and that companies may be held directly liable for the actions of their ‘senior managers’ (we have explored this previously in our article here).
The Procurement Act 2023 now codifies that, should a corporate be found guilty of an economic crime offence such as bribery and corruption or fraud, it will be debarred from tenders from public contracts for a period of up to 5 years on a mandatory basis. It also makes public the reasons for which suppliers are not considered for public contracts. It also actively encourages social value considerations to be part of the decision-making process for key public tenders.
A clear message is developing: in order to compete effectively for public contracts, your business must have a strong ethics and compliance function; not only preventing it from becoming a vehicle for economic crime (or risk the penalty of debarment), but to enable it to actively compete on the basis of its social governance presence.
These evolving standards signal that compliance is no longer a back-office function, but a strategic imperative tied directly to eligibility for public contracts and protection against criminal liability.
Please find detailed articles from our Business Crimes and Investigations team (here), which cover in detail, the need for increased policies and procedures ahead of September and why compliance is worth the strategic investment.
Mandatory Exclusion: A shift toward zero tolerance
Schedule 6 of the Procurement Act 2023 introduces mandatory exclusion grounds that apply when a company or individual has been convicted of serious offences, including:
- Bribery (Clause 17)
- Fraud (Clauses 15 and 16)
- Tax evasion, including failure to prevent it (Clause 30)
- Money laundering (Clause 14)
Where a mandatory ground applies, contracting authorities must exclude the supplier from procurement processes. One major implication our Business Crime team predicts is that companies regularly competing for public contracts may now be more inclined to negotiate Deferred Prosecution Agreements (DPAs) to avoid criminal convictions and the resulting debarment. An article on this can be found here.
Should this be a consideration for your business, Anna McIntyre, Senior Associate in the Business Crime team, is experienced in negotiating DPAs, and was actively involved in the development of government policy in her previous role at the Serious Fraud Office.
Debarment: Visibility and consequence
In a significant alignment with international best practices, the UK has introduced a more stringent framework for addressing bribery and related corporate misconduct within public procurement. The new regulations bring the UK in step with regimes like that of the U.S. Department of Justice (DOJ), particularly in regard to mandatory exclusion and debarment provisions.
Suppliers found to be in breach of these exclusion grounds may be placed on a central, public debarment list, increasing the reputational damage associated with non-compliance. The debarment period generally lasts five years, although it is not necessarily a life sentence—suppliers can reduce or eliminate this period through what the Act refers to as “self-cleaning.”
Self-cleaning involves demonstrating robust remediation actions—such as internal investigations, disciplinary measures, and the implementation of effective compliance programs. The goal is to prove the supplier has addressed the root causes of the misconduct and poses no further risk. You can read our previous article on this here.
Suppliers will typically remain on the debarment list for up to five years from the date of conviction or from when a Minister becomes (or reasonably should become) aware of the relevant event. However, if new grounds emerge, the exclusion period may reset.
A key shift in the new framework is the involvement of Ministers in the listing process. This reduces subjectivity in high-risk decisions and aims to prevent the under-utilisation of exclusion grounds seen under previous regulations, which many authorities avoided due to legal risk.
Discretionary exclusion
In addition to mandatory grounds, Schedule 7 of the Act introduces discretionary exclusion criteria, offering contracting authorities flexibility in assessing supplier conduct. This includes:
- Cartel activity
- Anti-competitive agreements
- Abuse of a dominant market position
- Resale price maintenance
Unlike mandatory grounds, the decision to exclude under discretionary grounds remains at the authority’s discretion and may vary case by case. However, these grounds can still lead to inclusion on the debarment register, reinforcing the seriousness of anti-competitive behaviour.
Competition law enforcement
The Competition and Markets Authority (CMA) plays a key role in enforcement. If a supplier is found by the CMA or another regulator to have engaged in cartel behaviour or breaches of competition law, this may automatically trigger mandatory exclusion—particularly if the conduct is ongoing or likely to recur.
Additionally, suppliers must be cautious of their associations. Grounds for exclusion may apply not only to the supplier itself but also to connected persons—including directors, parent companies, subsidiaries, and key subcontractors.
Transparency and the ‘Most Advantageous Tender’
Fundamentally, the reforms aim to enhance transparency, accountability, and public trust. By making debarment information accessible, and requiring publication of key procurement documents—including Key Performance Indicators (KPIs) and contract notices—the government signals a move towards open, responsible contracting.
This is in line with the evolving concept of procurement evaluation. The shift from “Most Economically Advantageous Tender” (MEAT) to “Most Advantageous Tender” (MAT) reflects a broader focus—not just on price, but also on social value, quality, and delivery standards.
What can you do?
In the new regime, you must proactively:
- Conduct rigorous internal compliance assessments
- Address any past misconduct through documented corrective actions
- Monitor and audit supply chains and associated persons
- Be prepared to demonstrate a clean track record — or proof of self-cleaning efforts
Public authorities, meanwhile, benefit from a centralised tool to support due diligence and reduce administrative burdens. By clearly defining exclusion grounds and centralising the listing process, the government aims to safeguard procurement integrity while enabling consistent, confident decision-making across the public sector.
How can we help?
Capital Law benefits from both a Public Law team and a Business Crime Team, with team members in both bringing experience from their previous positions in government to bear to all their client advice; ensuring compliance and tendering advice is focused, practical, and has the highest impact by ensuring your business remains competitive and compliant. We are also able to do so without charging the usual City rates.
Firms wishing to confidently navigate the changed procurement landscape must prepare now, by auditing their existing reviewing policies, strengthening controls, and ensuring that business crime and procurement teams work collaboratively. As enforcement powers evolve and reputational consequences grow, proactive legal advice will be more important than ever.
