Procurement Challenges in Northern Ireland After FP McCann: Exclusion, Self‑Cleaning and Litigation Risk
Introduction and Executive Summary
The Competition and Markets Authority’s (CMA) concrete drainage cartel case—culminating in October 2019 fines (over £25m for FP McCann) and a Competition Appeal Tribunal judgment upholding the CMA’s decision in December 2020—has reshaped how Northern Ireland contracting authorities approach exclusions, debarment periods and “self‑cleaning”. Tenderers need a live compliance narrative; authorities need auditable exclusion decisions that respect mandatory and discretionary grounds, time limits and evidence standards.
The Legal Levers for Exclusion
Mandatory exclusion generally applies following certain convictions (with a default five‑year period from conviction), subject to limited public‑interest overrides and proportionality in specific tax/social security cases. Authorities must verify absence of grounds and may request clarifications where documents are incomplete.
Discretionary exclusion can cover grave professional misconduct and serious breaches of tax or social security obligations. The default period for discretionary exclusion is three years from the relevant event. Decisions must be reasoned and proportionate.
Self‑cleaning: What Authorities Should Look for, What Suppliers Must Show
Economic operators facing exclusion may demonstrate “reliability” despite misconduct by proving they have: compensated or committed to compensate for damage; clarified facts by active cooperation; and implemented concrete technical, organisational and personnel measures to prevent recurrence. Where sufficient, exclusion should not be applied; where insufficient, the authority must give reasons. For both sides, contemporaneous evidence and board‑level governance changes are decisive.
Evidence and Information Handling
Authorities may accept judicial records or certificates from competent authorities as proof of clean status; where such documents are unavailable, declarations on oath may suffice. Build verification into your SQ/selection stages and retain records explaining how information was weighed.
Litigation Exposure and Standstill Strategy
Bidders challenging exclusion or award decisions must issue in the High Court within 30 days of when they knew or ought to have known of grounds (subject to limited extension and an absolute long‑stop of three months). For declarations of ineffectiveness, different, shorter windows apply, and in any event there is a six‑month outer limit from contract conclusion. Authorities should ensure compliant standstill letters and reasons; bidders should diarise strictly and issue protectively if needed.
Lessons from FP McCann for NI Authorities and Suppliers
Treat adverse competition findings as a live risk trigger: assess mandatory/discretionary grounds, but also record your self‑cleaning analysis to withstand scrutiny. The cartel decision and director disqualifications demonstrate that UK enforcers and tribunals will back robust sanctions.
Calibrate exclusion periods carefully, distinguishing between conviction‑based mandatory grounds and “relevant event” discretionary grounds. Align with the five‑ and three‑year defaults and record any proportionality overrides.
For suppliers, prepare a “rehabilitation pack”: competition compliance audits, training records, independent monitoring, board minutes, remedial measures and any compensation steps—mapped to the self‑cleaning criteria in Regulation 57(15).
What to Watch in 2026
The Procurement Act 2023 (once fully commenced for NI authorities) will reshape exclusion grounds and transparency. Until then, NI bodies remain within the 2015 Regulations—so FP McCann‑driven scrutiny of misconduct and self‑cleaning continues. Keep your templates and evaluation notes anchored in the current Regulations and build a transition plan for new statutory guidance.