UK PROCUREMENT BILL FAQs
A set of frequently asked questions for customers and partners of Dahua Technology related to the UK Procurement Bill expected to come into force mid to late 2024.
Q: When the Bill becomes law, will there be a ban on Chinese products?
A: No, the Bill outlines how public contracts are to be awarded and managed but does not single out Chinese products for bans in government procurements. It does however give the Government the authority to exclude suppliers based on national security, either case-by-case or if they are on a debarment list for specific contracts. These powers might lead to bans on certain products in the future for particular contracts.
Q: What parts of Government will the Bill cover and will it prevent selling into the MOD, Law Enforcement, Local Government, NHS Hospitals, Prisons, State Schools etc?
A: The Bill applies to most government and public bodies, including certain utilities, when they are contracting to buy goods, services, and works above certain financial limits. It requires fair and transparent competitive bidding for those contracts. The Bill does not forbid selling specific products to particular entities. It does grant the Government the power to exclude suppliers due to national security concerns. This might result in suppliers being barred from contracts with government bodies posing higher national security risks. Contracting authorities must verify if bidders are on the exclusion list for each procurement. Some security-related bodies like the Security Service and GCHQ are exempt from the Bill. They can independently choose whom to contract with. The Bill does not cover Scottish authorities, as Scotland maintains EU law-based procurement rules for now. They may align their procurement rules with the Bill in England, Wales, and Northern Ireland later.
Q: Is there a right to appeal a decision by the Government / local authority not to use Chinese products and can this be made by the installer?
A: Individuals and companies in the UK or from states with trade agreements have the right to challenge decisions related to excluding a supplier from a procurement due to national security or other reasons. Any challenge would be brought as a claim before the High Court in London.
Q: Will the Government communicate the Bill with an explanation of what end users can and cannot do?
A: Yes, the Government is planning an extensive programme of training on the Bill, details of which can be found here. This training is targeted at public sector and utilities buyers, but it is also envisaged that training will be provided for suppliers.
Q: When does the Bill come into force?
A: At the time of writing (September 2023) the Bill is near the end of its Parliamentary passage. It is expected to receive Royal Assent and become the Procurement Act 2023 in Autumn 2023. Thereafter, the Government expects there to be a 6–12-month implementation period before the main substantive provision of the Act, including the rules on supplier exclusion and debarment, come into force. The Act therefore is likely to come into force mid-late 2024. As noted in response to earlier questions, the coming into force of the Act will not lead to any immediate ban on Chinese products. The Government would first need to exercise its power to exclude Dahua or other Chinese suppliers from certain categories of public contracts.
Q: How long will the Bill once enacted remain in force?
A: The Procurement Act once in force will remain in force indefinitely.
Q: Is the Bill advisory or obligatory?
A: The duty of contracting authorities to comply with the Procurement Act when it comes into force will be obligatory. Should a supplier receive mandatory exclusion on national security grounds the contracting authorities will have an obligation to exclude the supplier from relevant contracts. For discretionary exclusion of a supplier on national security grounds is concerned, where the supplier is not on the mandatory debarment list, contracting authorities will have to consider in each case whether an exclusion ground applies. Where the authority proposes to exclude a supplier on national security grounds, it must first consult the National Security Unit for Procurement which will advise on whether the supplier should be excluded.
Q: Will the Government advise on their interpretation of a sensitive site?
A: Last week, the UK government offered a clear definition of ‘sensitive’ sites. These included any building or complex that routinely holds secret material or above; any location that hosts a significant proportion of officials holding developed vetting clearance; any location which is routinely used by Ministers; and any government location covered under the Serious Organised Crime and Police Act 2005. In the announcement, it was noted that the level of risk in recycling centres, leisure centres, schools or hospitals does not match that of ‘sensitive’ sites. PRC cameras will therefore not be removed from these buildings or areas meaning there will be a minimal impact on Dahua UK’s business. We will continue to operate as usual, adhering to extremely high cybersecurity, privacy and ethical standards in the market. As always, we are committed to serving the UK market with our state-of-the-art products and services, creating a safe and smarter environment for our customers.
Q: Will the Government be publishing a summary or abbreviated version of the Bill?
A: The Act when it receives Royal Assent will be accompanied by a set of Explanatory Notes. These notes can sometimes provide helpful guidance on the intended meaning of the provisions of the Act which they accompany, but they are not binding and have no legislative force. The only definitive version of the Bill will be the text of the Procurement Act once it receives Royal Assent.
Q: Will there be any penalties for a local authority that uses Chinese products? Is there a risk to individuals?
A: There is no outright ban on using Chinese products under this Bill. If a local authority were to award a contract to a supplier on the debarment list, there are no direct penalties, but they could however face challenges from other bidders, leading potentially to having the procurement decision overturned and/or damages being awarded to the challengers. Local authorities may also suffer reputational harm and be subject to investigation by central Government. For suppliers not on the debarment list but causing national security concerns, authorities are not obligated to exclude them. Authorities will be required to seek advice from the National Security Unit for Procurement (NSUP) to decide on whether to exclude. Challenging such a decision is tough since it is based on discretion. Regarding individual risk, public officials, like procurement officers, should follow the law. Unlawful actions usually do not lead to personal liability but could result in disciplinary consequences. Personal liability typically occurs only in cases of malice, bad faith, or corrupt behaviour.
Q: What are the mechanics for being placed on the debarment list? How will a supplier know they have been put forward and is there a mechanism for contesting during the process?
A: Before including a supplier on the debarment list, the Government must first carry out an investigation. The supplier must be notified of the investigation and given an opportunity to comment. The supplier might also be required to provide documents and give reasonable assistance to the investigation.
