Tax and public procurement

The government has announced expected changes to the public procurement regime to include criteria based on the tax compliance history of a tendering party. Under the proposed measures, suppliers bidding for contracts subject to obligations under the EU procurement rules after 1 April 2013 will be required to state in their tender whether they have had any ‘occasions of non-compliance’ in the previous ten years. A successful tenderer will be under continuing obligations to notify further occasions of non-compliance and such subsequent occasions of non-compliance may result in sanctions under the contract awarded, potentially including termination. To a tax lawyer, these proposals look stark and almost penal; however, in the context of a procurement exercise where an authority is entitled to exercise its discretion, the framework proposed may turn out to be relatively flexible and therefore fair.