The language of the law is deceptively easy to read. Deceptive because its implications are difficult to contemplate or fully appreciate. On its face, it appears to be one of those laws whose application will only become apparent after a few "trial" runs through the courts. Meanwhile, just search "UK bribery act 2010" to get some idea of the confusion reigning amongst those who hope to counsel and advise.
For instance, the law firm Norton Rose advises
A key element of the new bribery offences is that the intention of the briber is that the person being bribed improperly performs his/her duties. Improper performance is defined by reference to a failure to perform one’s duties in line with a relevant expectation. These relevant expectations are:
1. that the function will be performed in good faith;
2. that the function will be performed impartially; or
3. that the function imports a position of trust.
Improper performance will arise if it is intended that, by paying the bribe, the recipient of the bribe would be expected to act otherwise than in good faith, an impartial manner or in accordance with a position of trust.
A lawyer in another firm, in a bit of issue-spotting, points to that aspect of the law to question whether the following case raises the specter of bribery under these new provisions. The lawyer is Paul Jones, the firm is Farrer & Co LLP:
Norwich City Council held a procurement for contracts to provide various services and works relating to social housing. Morrison Facilities Services Limited (“Morrison”) bid £23m for these contracts, but they lost out to a £17.5m bid from Connaught Partnerships Limited (“Connaught”).
Morrison was unhappy with various aspects of the procurement procedure, in particular it complained that Connaught’s tender was accepted despite it being “abnormally low” and that the Council had applied undisclosed criteria when assessing the ‘quality’ of bids.
The High Court ruled that Morrison had a seriously arguable case that Connaught had submitted an abnormally low tender and that the Council had failed fully to investigate whether the bid was sustainable. Furthermore, the Court found that Morrison had a seriously arguable case that the Council had relied on undisclosed award criteria in its assessment of the bids.
Under section 2(3) of the Bribery Act 2010, an offence is committed where a contracting authority “…agrees to receive or accepts a financial or other advantage, and the… agreement or acceptance itself is the improper performance of a relevant function or activity”. Any public function (including carrying out obligations under the public procurement rules) can be a “relevant function” for the purposes of the Act and it does not matter if the contracting authority knew or believed that they were performing improperly. However, there remains uncertainty over how the term “financial or other advantage” will be interpreted.
Particularly whilst such uncertainty remains, contracting authorities will need to be careful and thorough when dealing with any offer which appears, on the surface, to be abnormally low.
I cannot vouch for the veracity, but have heard stories along the lines that a bidder will bid low and win an award to supply a product, then supply a product which does not meet the specifications. And let's assume, as I was told, that anyone who had done any market research would know that the product specified could not be purchased at the low bid price.
Those conditions, if true, would suggest the contracting authority improperly performed its function, first in failing to do appropriate market research prior to going to bid, and secondly, accepting performance without checking the product delivered against the contract specifications.
It is an interesting question whether gross incompetence in evaluating a bid or performing contract administration might be deemed an "improper performance" under the bribery act.
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