Grenfell and debarment

In July 2025, the Government confirmed that debarment investigations into Grenfell suppliers are paused until criminal proceedings conclude. Whilst understandable in principle, this pause highlights a gap: contracting authorities remain responsible for protecting public funds, yet constrained in how they act.

Why the discretionary grounds don’t apply

The Procurement Act 2023 (the “Act”) includes discretionary grounds preventing bidders from participating in covered procurements, having their tender considered or from being awarded public contracts, such as professional misconduct or poor performance. In the Grenfell context, neither applies: no court or regulatory findings exist, and suppliers have not had the chance to rectify performance. Authorities therefore cannot rely on these grounds.

Innocent until proven guilty, but the risk remains

It is important to stress that suppliers remain innocent until proven guilty, and the pause in debarment investigations reflects that principle. The Act is designed to prevent exclusion based on allegations alone, protecting suppliers from premature or unfair sanction.

However, that does not remove the challenge for contracting authorities. Allegations of this seriousness inevitably create uncertainty. Authorities may feel exposed when making award decisions, conscious of both the risk of contracting with a supplier under investigation and the legal risk of excluding them without lawful grounds.

Managing risk within the current framework

Authorities faced with this situation have a few options:

• Evidence based exclusion: Where authorities hold their own evidence of poor performance, misrepresentation or other exclusion grounds, these may be relied upon.
• Strengthened compliance and assurance: Demanding rigorous technical compliance, certifications or warranties can provide some protection against risks.
• Robust contract management: Including clear performance obligations and termination clauses allows authorities to respond quickly if issues arise.

Faced with uncertainty, some authorities may be tempted to ‘skew’ evaluation scoring to avoid appointing a supplier seen as high risk. That may feel like a pragmatic workaround, but such an approach carries significant dangers. Manipulating evaluation scoring to achieve a desired outcome undermines transparency, breaches fair treatment obligations and heightens the risk of legal challenge. In trying to avoid one set of risks, authorities could inadvertently create another.

The central debarment regime: A system designed to protect, but not perfect

The central debarment regime introduced under the Act was intended to balance these tensions: a single, government led process would remove the need for individual authorities to make exclusion judgments. The Grenfell related pause, however, shows that this system cannot act until the criminal process is complete. In effect, authorities are caught in limbo, responsible for protecting public funds, but constrained in how they can act.

Reflection for practitioners

The Grenfell case illustrates a broader point for public procurement under the new Act. Procedural fairness and due process are paramount, but they can create temporary gaps in risk management. Authorities need to be proactive in documenting their risk assessments, using contract safeguards, and maintaining transparent decision-making processes. While the law prevents exclusion based on allegation alone, it does not prevent authorities from actively managing risk within the legal framework.

In short, the Act provides powerful tools for protecting public funds and supplier rights, but as is demonstrated by the developments since Grenfell, the timing and interplay of debarment and criminal proceedings can present temporary vulnerabilities. Procurement professionals must navigate these carefully, balancing legal compliance, reputational risk and public safety.

Nicola Cullen is an Associate at Capital Law.