Failure to prevent bribery will not necessarily lead to bar from public procurement

A company convicted of the new offence under the Bribery Act of a failure to prevent bribery will not necessarily be excluded from public procurement, the government has said.

On Wednesday, the Justice Secretary published the long-awaited guidance for the Act and confirmed that the new regime would come into force on 1 July 2011.

The issue of public procurement was not raised in the guidance. However, Ken Clarke said in his written ministerial statement: “The government have also decided that a conviction of a commercial organisation under section 7 of the Act in respect of a failure to prevent bribery will attract discretionary rather than mandatory exclusion from public procurement under the UK's implementation of the EU Procurement Directive (Directive 2004/18).”

The Justice Secretary said the relevant regulations would be amended to reflect this.

Clarke predicted when the guidance was published that there would not be a large number of prosecutions under the Act and “certainly not for trivial cases”.

The guidance underlined that combating bribery was “about common sense, not bureaucracy”, he added.

Under the Act, businesses and other organisations will have a defence to the offence of failure to prevent bribery if they have “adequate procedures” in place. Clarke said these measures only needed to be proportionate to the size and nature of the business.

Philip Hoult