Alongside other key legislation such as the Procurement Act 2023, Social Value Act 2012 and Freedom of Information Act 2000, the Bribery Act 2010 ensures the tendering process adheres to public procurement standards.
As part of this, tender questions may include a response for bidders to explain how they have complied with anti-bribery requirements, provide details around their anti-corruption policies and, above all, have submitted a fair, competitive bid. This can range from a brief statement or confirmation response, to a full narrative response which will be awarded marks.
We explain how the Bribery Act 2010 applies to public sector bids, the types of Bribery Act tender questions the authority will ask, supporting evidence required and potential consequences of breaking an anti-bribery policy.
Why does the Bribery Act 2010 apply to tendering?
While the Bribery Act is not legislation which governs tendering, adherence to the principles of the Act demonstrates integrity in the tender process. Key provisions relevant to the procurement process include:
- Section 1: offering, promising or giving a bribe to another person – in this instance, a member of the contracting authority’s procurement team
- Section 2: requesting, agreeing to receive or accepting a bribe – this could apply to both the bidder organisation as well as the buyer
- Section 7: failure by commercial organisations to prevent bribery committed by associated persons, for the purposes of obtaining, retaining or otherwise gaining an advantage through conduct of business.
With roughly 33% of the total government budget spent through procurement, public sector tenders are a key risk vector for potential bribery and other anti-competitive activity to take place. As such, it is crucial for contracting authorities to take anti-corruption measures in bidding and ensure that contracts and framework agreements are awarded fairly, through a competitive process.
Consequences of bribery or anti-competitive activity in bidding
If organisations are caught trying to bribe or unduly influence the tender process, the consequences are severe. This includes, but is not limited to:
- Criminal sanctions for individuals involved in the activity, including a maximum sentence of up to 10 years’ imprisonment
- Unlimited fines for companies involved, with judges given latitude to hand down a fine as they see fit
- Placement on the debarment list, which would exclude organisations from bidding for a specified amount of time.
Consequently, it is critical to ensure not only that you have robust anti-bribery measures in place, but follow the instructions in the Invitation to Tender (ITT) regarding communication with the authority – for instance, by only communicating clarification questions through the tender portal.
What questions will the authority ask around bribery?
The Procurement Specific Questionnaire (PSQ) contains several confirmation responses requiring bidders to self-certify they have not been convicted of anti-competitive activity.
Equally, quality responses may require bidders to outline:
- Adequate procedures to proactively prevent and mitigate the risk of bribery, including policies, training and monitoring in place to deter bribery
- Due diligence and risk assessment on potential clients, subcontractors and other third-party organisations to ensure their trustworthiness and compliance
- Anti-corruption policies providing guidelines around gifts and hospitality, expenses, conflicts of interest and third-party risk management
- Training and awareness of anti-bribery processes, when and how often this is delivered (i.e. as part of company inductions) and which members of staff receive training
- Reporting and whistle-blowing policies: the authority’s enquiries may include ensuring channels exist for reporting potential issues and protecting individuals who raise concerns
- Record-keeping: demonstrating your organisation’s ability to keep a detailed record of anti-bribery procedures and due diligence processes, such as outgoing and incoming invoices.
These responses may be formally evaluated, so it is important to adhere to identical bid writing processes as other responses, ensuring the highest possible marks.
Supporting evidence to demonstrate compliance with the Bribery Act 2010
Lastly, the authority may request additional supporting evidence in the form of attachments and appendices. Examples of this include:
- Policies and procedures, including an anti-bribery and corruption policy, code of conduct and/or ethics policy, and a gifts and hospitality register which shows constraints/approvals process for any gifts
- Staff training records or training materials evidencing delivery of formal training covering the risks of bribery and corruption
- Governance and monitoring processes including a named individual responsible for enforcing anti-corruption measures
- Declaration and self-certification documents, which normally comprise the form of tender and certificates of non-canvassing and non-collusive activity.
This underscores the importance of a strong bid library, ensuring all documents and policies are easily accessible and avoiding any stress in collating documents and the submission.
Supporting you with anti-bribery questions and bid compliance
At Executive Compass, our expert bid and tender writers produce responses each day demonstrating how our clients adhere to relevant legislation. Equally, we also undertake our own research to determine how best to present your particular processes and procedures, aligning this with best practice and the evaluator’s expectations.
To find out more about how we can support you with a live tender opportunity, contact a member of our sales and marketing team today at info@executivecompass.co.uk or via telephone 0800 612 5563.