Procurement (Debarment of Suppliers) Regulations 2021

The drafting divides risk into defined categories of conduct and a discretionary residual category. Category A debarment conduct, set out in Schedule 1, is composed largely of serious criminal and statutory offences: bribery and corruption, embezzlement and theft, extortion, falsification, fraud, laundering proceeds of crime, secret commissions, serious WHS and environmental offences, certain taxation offences, human trafficking, and analogous foreign offences (r 9; Schedule 1). Category B debarment conduct in Schedule 2 captures less severe but still significant regulatory breaches such as unfair contract terms, some corporate governance and insolvency-related breaches, non‑compliance with modern slavery and anti‑discrimination reporting obligations, industrial relations and superannuation obligations, workers compensation obligations, and other environmental, safety and taxation contraventions (r 10; Schedule 2).

“Other debarment conduct” is a catchall that allows the CEO to debar for conduct outside Schedules 1 and 2 where that conduct would be likely to have a material adverse effect on procurement integrity, public confidence, the State’s reputation, or business risk to State agencies (r 11(1)). It also expressly includes a failure to cooperate with a CEO investigation and debarment under a corresponding debarment regime (r 11(2)). This residual concept is framed in terms of potential harm to the procurement system rather than the catalogue of offences in the Schedules.

Key procedural concepts include investigation, show cause, decision, suspension, and supplier undertakings. The CEO may initiate or respond to requests from State agencies to investigate suspected debarment conduct; investigations may be carried out by Department officers or by appointed qualified persons (r 12). Before debarment the supplier must be given written notice stating the reasons, procedures and consequences and be allowed a minimum of 7 days to make submissions; the CEO must consider submissions (r 13). If the CEO decides to debar, the written notice must set out reasons, the period and commencement date, and rights of review (r 14). Separately, for Category A matters the CEO may suspend a supplier pending outcome (r 15), with termination triggers and a defined maximum initial duration (r 16). Supplier undertakings are voluntary agreements that may stay all or part of debarment consequences or proposed debarment, and may include mandated remedial measures (rr 22-24).

Definitions and linkage to corporate groups are also central. The regulations expand the affiliate concept for debarment purposes by treating control, related body corporate status, shared senior officers, and successors to a business as affiliate relationships (r 4). The Corporations Act s 50AA is applied to determine control where relevant (r 4(2)(a)). Affiliates may be debarred on public interest grounds and are subject to a three year lookback rule for timing (r 5(4)-(5); r 8(2)). The standard of proof for satisfaction is the balance of probabilities (r 27), which is significant where Category A conduct otherwise requires conviction or administrative determination unless the supplier fails to deny the conduct in response to show cause (r 5(2)).

Primary targets are suppliers to State agencies in Western Australia, including corporations, sole traders and other entities that supply goods, services or works (see r 5(1) which empowers the Department CEO to debar a supplier). The regulations apply whether or not the conduct relates to State procurement and whether or not it occurred in Western Australia, subject to the three year temporal limitation for reliance on past convictions, penalties or conduct (r 8(3)-(4) and r 8(2)). An affiliate of a debarred supplier is also in scope through the expanded affiliate definition in regulation 4, which captures control relationships, related bodies corporate, shared senior officers, and successors to the business (r 4(1)(a)-(d)). An affiliate may be separately debarred if the Department CEO is satisfied it is in the public interest and provided the time since the original supplier’s debarment does not exceed three years (r 5(4)-(5)).

Senior officers of suppliers are implicated both as actors whose conduct can ground debarment, and as a locus for attribution. A supplier may be debarred because of conduct of a senior officer where the senior officer was acting for and on behalf of the supplier, or where the supplier was convicted or penalised because of the officer’s conduct, or where the supplier knew or ought to have known about the conduct and retained the officer (r 5(3)). The regulations therefore make the behaviour of directors and senior managers relevant to the supplier’s debarment risk.

State agencies are affected as decision takers and implementers. Once a debarment or suspension decision is made, State agencies must comply with it, and the Department CEO must notify State agencies of suspensions (r 20(1); note to r 17). The regulations also permit authorised bodies other than the Department to exclude suppliers from their procurement processes on the basis of debarment or suspension decisions (r 26). This extends the practical effect of debarment beyond the Department’s own contracts to a wider set of agencies and authorised bodies.

Supply chains and subcontractors are affected by the subcontracting prohibition. A non‑debarred supplier cannot be awarded a contract if any part of the works or services are to be supplied under a subcontract with another supplier who is debarred or suspended (r 19(2)). This provision reaches beyond the named debarred supplier to trading partners and sub‑contracting arrangements and creates downstream commercial exposure for entities that engage debarred firms.

Other stakeholders with procedural or remedial roles include the Department CEO (central decision-maker), the State Administrative Tribunal (as a review body, where suspension decisions and certain refusals are prescribed for SAT review, rr 18, 25(4)), and courts or public bodies whose convictions or penalties are prerequisites for some Category A debarments unless the CEO is satisfied the conduct occurred and the supplier did not deny it in a show cause submission (r 5(2)). Finally, the public and market participants are affected by publication on the public register, which lists debarred suppliers’ names, ACN/ABN and debarment period (r 21).

The regulations allocate decision authority, procedural duties and rights of review. The Department CEO has the duty and discretion to investigate suspects (r 12), to give show cause notices prior to debarment (r 13), and to give written decisions with reasons, period and review rights (r 14). The CEO also has express powers to suspend a supplier during investigation where the matter relates to Category A conduct (r 15), and to enter supplier undertakings and determine their terms, scope and termination (rr 22-24). The CEO must consider submissions properly made in response to show cause notices (r 13(4)) and may terminate suspensions in specified circumstances such as discontinuation of official investigations or withdrawal/dismissal of proceedings (r 16(2)).

Suppliers have procedural rights. Before debarment the supplier must receive notice of the fact debarment is under consideration, the reasons, the applicable procedures including undertakings and review rights, and the consequences; suppliers get a minimum of seven days to make submissions and the CEO must consider them (r 13(1)-(4)). If debarred, suppliers receive a written notice with reasons, the period and commencement date, and their review rights (r 14). Suppliers have the right to ask the Department CEO to reconsider debarment or suspension where material relevant information becomes available, convictions or penalties are quashed, there has been genuine change of management, or other appropriate changes in circumstances; the CEO must reconsider and notify the supplier of the outcome (r 25(1)-(3)). The regulations also enable suppliers to apply to the State Administrative Tribunal to review suspension decisions and certain CEO refusals, by prescribing those decisions for the purposes of section 34(b) of the Act (r 18; r 25(4)). The regulations require that notices be in writing and allow email if specified by the recipient (r 28).

State agencies must comply with debarment and suspension decisions of the Department CEO except where the CEO excludes the application of the prohibitions to a particular contract on public interest grounds (r 20(1)-(2)). There is an explicit option for the Department CEO to exclude operation of the substantive prohibition on awards and extensions in particular contracts where exceptional circumstances justify it (r 20(2)). The regulations also permit stays of debarment consequences by supplier undertakings (r 22(2)), and undertakings may be terminated by either party, with termination restoring the full consequences (r 24(1)-(3)).

Substantial legal effects flow from the duties and rights. A debarred or suspended supplier is precluded from seeking or being awarded new contracts, acting as agent or representative for other suppliers, and seeking extensions of existing contracts (r 19(1)). Non‑debarred suppliers are also precluded from award where the relevant goods or services are to be supplied under a subcontract with a debarred or suspended supplier (r 19(2)). The public register duty imposes an obligation on the Department CEO to publish limited identity and period data for debarred suppliers (r 21).

The regulations themselves do not create criminal penalties. Instead they operate as administrative sanctions: suspension and debarment are administrative decisions with prescribed consequences for participation in State procurement (rr 15, 19). For Category A conduct, the text links debarment to criminal convictions and administrative penalties in other instruments, specifying that the CEO cannot debar on Category A conduct unless there is a conviction or an administrative determination imposing a penalty, except in a limited circumstance where the CEO is satisfied the conduct occurred and the supplier did not deny the conduct in response to a show cause notice (r 5(2)). That structure ties the administrative sanction of debarment to prior criminal or administrative findings for the most serious classes of misconduct, unless the supplier’s silence in the show cause process removes that barrier.

Enforcement of the debarment regime within the procurement system is achieved by precluding participation and by requiring State agencies to comply with debarment and suspension decisions (r 19, r 20(1)). The CEO may exclude application of the substantive procurement prohibitions to particular contracts on public interest grounds (r 20(2)), creating a controlled exception pathway. The regulations also empower authorised bodies to rely on Department debarment and suspension decisions when excluding suppliers from their own procurement activity (r 26), which broadens enforcement beyond the immediate Department.

Administrative enforcement tools include suspension pending investigation (r 15) and publication on a public register containing name, ABN/ACN and debarment period (r 21). Suspension duration rules cap the initial suspension at 12 months with possible extensions of 6 months where an official investigation or proceedings are pending and the total suspension does not exceed potential debarment length (r 16(5)). The CEO may terminate suspension early on discontinuation of official investigations or withdrawal/dismissal of proceedings, or if the CEO decides not to debar (r 16(2)-(3)).

Review and oversight are available through statutory mechanisms. Certain CEO decisions, including suspension decisions, are prescribed for review by the State Administrative Tribunal under the Act (r 18), and refusal to revoke or amend a debarment or suspension following a supplier’s reconsideration request is also prescribed for SAT review (r 25(4)). The regulations require the CEO to give reasons with decisions to debar (r 14(2)(a)), which supports judicial or tribunal review and administrative accountability. The standard by which the CEO may be satisfied is the balance of probabilities (r 27), which lowers the proof threshold relative to criminal proceedings.

Compliance with the regime will be monitored administratively, and the CEO may appoint officers or external qualified persons to carry out investigations (r 12(4)). The regime therefore uses administrative investigative and adjudicative levers rather than criminal penalties, but it intersects with criminal and regulatory law by referencing convictions and penalties in other statutes as triggers and inputs for debarment decisions (Schedules 1 and 2, r 5(2), r 8(2)).

The regulations are explicitly linked to a broad array of Commonwealth and State statutes by cross‑reference and by adopting those statutes’ offences and contraventions into the debarment categories. Category A and Category B Schedules enumerate numerous offences and contraventions under other statutes, such as the Corporations Act, the Commonwealth Criminal Code, the Australian Consumer Law as defined in the Competition and Consumer Act 2010, taxation statutes, the Work Health and Safety Act 2020, the Occupational Safety and Health Act 1984, environmental statutes, the Building and Construction Industry (Security of Payment) Act 2021, the Modern Slavery Act 2018, the Fair Work Act 2009, and several petroleum and dangerous goods Acts (Schedules 1 and 2). These references treat findings under those regimes, including convictions, penalties and certain civil contraventions, as potential bases for administrative debarment by the Department CEO (r 9, r 10, r 5(2), r 8(2)).

The regulations also import Corporations Act concepts to determine control for affiliate analysis, by applying Corporations Act s 50AA to the question of control (r 4(2)(a)). The terms “senior officer” and “related body corporate” use the Corporations Act definitions where referenced in r 3(1). The debarment framework therefore sits on top of corporate law tests for group attribution.

Procedurally and institutionally, the regulations reference Part 7 of the Procurement Act 2020 and specific Act sections in notes. For example, the note to r 14 cites section 36(1) of the Act concerning the public register, and the note to r 17 refers to section 36 of the Act permitting suspension without notice in some cases. The regulations therefore complement and elaborate the Act’s Part 7 machinery rather than replace it.

Review interacts with the State Administrative Tribunal under the Act. Regulation 18 prescribes suspension decisions for the purposes of section 34(b) of the Act, enabling SAT review of suspension decisions. Regulation 25(4) prescribes for SAT review the CEO decision to refuse to revoke or amend a debarment or suspension following a reconsideration request. The regulations also require reasons for debarment decisions and set a balance of probabilities standard of satisfaction (r 14, r 27), which will be relevant in judicial or tribunal review contexts.

The regulations expressly acknowledge corresponding debarment regimes in other jurisdictions. Conduct leading to debarment under a corresponding regime may ground debarment here if within the three year lookback period (r 8(2)(c)). The Schedules also import offences or contraventions in other jurisdictions where equivalent conduct would constitute a Schedule offence in Western Australia (Schedule 1 item 26; Schedule 2 item 12). This makes international and interstate regulatory outcomes potentially relevant to State procurement exclusion.

Finally, notice provisions incorporate the Interpretation Act 1984 in relation to service of documents (r 28(3)). The regulations thus interface with multiple statutory regimes at State and Commonwealth level and create administrative bridges between criminal/regulatory outcomes in those regimes and debarment consequences in State procurement.

The compilation table in the instrument records the original enactment and subsequent amendments. The regulations were initially published as SL 2021/187 on 5 November 2021 with Part 1 commencing on that day and the rest commencing on 1 January 2022 (see r 2 and the compilation table). They were amended by the Procurement (Debarment of Suppliers) Amendment Regulations 2023 (SL 2023/133), published 9 August 2023; the amendment regulation provisions commenced variously on 9 August 2023, 10 August 2023 and 1 February 2024 depending on the specific clause (compilation table entries and notes at the end of the instrument refer to r 2 and r 3-5 of that amending instrument). The Schedule 1 table shows an annotation that Schedule 1 was amended by SL 2023/133 (r 4 and 5). Schedule 2 was amended by SL 2024/134, the Finance Regulations Amendment (Workers Compensation) Regulations 2024, which was published 26 June 2024 and commenced 1 July 2024 for the relevant parts (see compilation table entries indicating SL 2024/134 and commencement date 1 Jul 2024).

The instrument’s notes and compilation table identify which parts of the amendments took effect on what dates. For example the compilation table entry for SL 2023/133 shows r 1 and 2 commenced on 9 August 2023, r 3 and 4 commenced on 10 August 2023 and r 5 commenced on 1 February 2024. The more recent SL 2024/134 entry indicates amendments to Schedule 2 and notes commencement on 1 July 2024 for Pt. 3. These annotated commencement points matter where particular new offences or contraventions were added to the Schedules, and they explain why some Schedule entries carry amendment footnotes.

Where the text records that Schedule 1 and Schedule 2 have been amended, the practical effect is that the catalogue of conduct capable of triggering Category A or Category B debarment has evolved since the instrument’s first publication. The instrument itself is the compilation, so the Schedules as presented reflect the current state of the law including those amendments. Practitioners should rely on the compiled version and the dates in the compilation table to determine whether a particular category or item applied at a particular historical time, given the three year lookback limitations in r 8(2) and the times at which schedules changed.

The notes also record that the instrument is licensed under CC BY 4.0 and that the State of Western Australia is the relevant copyright holder. No cases or litigation entries are recorded in the compilation table; amendment history is exclusively statutory via numbered SL instruments.

The regulations themselves do not list any litigation or reported decisions, and the compilation table and instrument text do not mention decided cases or tribunal determinations citing these regulations. The instrument does however specify review avenues and reviewable decisions, which creates potential litigation and tribunal activity. Regulation 18 prescribes suspension decisions for the purposes of section 34(b) of the Act, making suspension decisions reviewable by the State Administrative Tribunal. Regulation 25(4) prescribes a CEO decision to refuse to revoke or amend a debarment or suspension following a reconsideration request for SAT review. Regulation 14(2)(c) requires that notices of debarment advertise the supplier’s rights of review under the Act or the regulations. Practitioners facing debarment or suspension therefore have a statutory pathway to administrative review in SAT where the instrument prescribes it, and decisions will be subject to applicable standards of judicial or tribunal review.

Because the regulations tie many Category A debarments to prior convictions or administrative determinations (r 5(2)), some debarment cases will involve interpreting the effect of criminal or other proceedings on administrative procurement decisions. The regulations also set out a balance of probabilities standard for the CEO’s satisfaction (r 27), which will be a live point in reviews where the CEO relies on administrative fact‑finding rather than a prior court conviction.

Absence of reported litigation in the instrument means there is no compilation‑level record of how SAT or courts have interpreted the regulations. Practitioners should therefore plan for first‑instance disputes in SAT concerning: (1) whether conduct fits Schedule categories or “other debarment conduct”; (2) whether the CEO complied with the show cause and reasons obligations (rr 13, 14); (3) whether suspension was lawful and proportionate, including the right to a timely review under r 18; and (4) whether the CEO properly considered mitigation and remedial factors listed in r 7 when determining the public interest and the period of debarment. The instrument’s explicit requirement to provide reasons on debarment notices (r 14(2)(a)) creates an evidentiary baseline for tribunal review.

The regulations also import outcomes from other regimes, so litigation or decisions in those regimes (for example criminal convictions, WHS determinations, taxation penalties, or decisions under the Fair Work Act) will track into debarment contexts because of the cross‑references in the Schedules. Any litigation history that does emerge will therefore likely combine antecedent criminal or regulatory determinations and subsequent administrative review of the procurement exclusion.

Several features have outsized practical effects that may be overlooked.

1. Discretion and broad criteria. The Department CEO has broad discretionary powers (numerous “may” provisions), including whether to debar for “other debarment conduct” where the CEO is satisfied the conduct would materially affect procurement integrity, public confidence, reputation or business risk (r 11(1)). This is a subjective standard; the instrument lists mitigating and remediating factors the CEO may consider but does not limit the CEO’s discretion (r 7). The CEO also has sole discretion whether to enter into supplier undertakings and on their terms (r 22(3)).

2. Category A preconditions and the supplier’s reply. For Category A conduct the CEO cannot debar unless there is a conviction or an administrative determination imposing a penalty, except where the CEO is satisfied the conduct occurred and the supplier has not denied it in response to a show cause notice (r 5(2)). Practically this means silence or failure to deny in the show cause response can enable debarment even without a prior conviction. Suppliers therefore risk administrative debarment if they fail to engage substantively in the show cause process.

3. Suspension can be done without prior notice in some circumstances. The note to regulation 17 refers to section 36 of the Act and records that the Department CEO may suspend without any notice or opportunity to show cause in some situations. Although r 13 requires show cause before debarment, suspension rules and the Act’s note create a situation where the supplier can be suspended first and get limited immediate process. Suspension is also subject to maximum durations and extensions (r 16).

4. Affiliate reach and successor liability. The affiliate definition is wide, including control, related body corporate status, shared senior officers and successors to the whole or part of the business (r 4(1)(a)-(d)). Successor status expressly covers mergers, acquisitions, restructures, takeovers, divestitures or any other reason (r 4(2)(b)). Affiliates can be debarred within three years of the original supplier’s debarment, and the maximum debarment period for an affiliate equals what the debarred supplier could have faced (r 5(4)-(5), r 6(3)). This reaches common commercial restructuring strategies; businesses acquiring assets of a debarred firm may inherit exclusion risk.

5. Subcontracting prohibition and second‑order supply chain effects. Regulation 19(2) precludes award to suppliers whose delivery relies on subcontracts with debarred or suspended suppliers. This can block procurement involving joint ventures or supply chains where a debarred supplier participates, and thus can cause practical disruption even for parties that are not themselves debarred.

6. Time limits and lookback. The regulations generally impose a three year lookback for reliance on convictions, penalties or debarments under corresponding regimes (r 8(2)). But subject to that limitation the CEO may consider conduct whenever it occurred (r 8(4)). Practically, historic conduct beyond three years will not be a ground for debarment based on conviction/penalty, but could still be considered in other ways where not barred.

7. Limited public register content. The public register contains only name, ACN/ABN and debarment period (r 21). There is no statutory requirement to publish reasons, prescribed conduct categories or supporting facts on the public register. If reasons are needed for commercial or reputational management, these will need to be sought from the CEO or through review where reasons must be provided in the debarment notice (r 14(2)(a)).

8. Supplier undertakings are double edged. Undertakings can stay consequences of debarment or proposed debarment (r 22(2)), but the CEO can terminate an undertaking at any time if it is not complied with (r 24(1)). Termination restores full consequences (r 24(3)). The CEO also controls the terms of undertakings, including external auditing and reporting obligations (r 23). Agreeing to an undertaking therefore imposes ongoing compliance costs and potential contractual compliance obligations.

9. Standard of proof is civil. CEO satisfaction may be on the balance of probabilities (r 27). This creates a lower proof threshold than criminal proceedings, which matters where the CEO conducts its own fact finding rather than relying on prior convictions.

10. Multiple mechanisms for remedy and re‑review. A supplier can request reconsideration of a debarment or suspension where materially relevant new information emerges, convictions are quashed, or there is genuine management change (r 25). However, the CEO’s refusal to revoke or amend is prescribed for SAT review (r 25(4)), which means continued exposure to administrative process and potential litigation costs.

Practical compliance requires operational, legal and documentation measures mapped to the Schedules and procedural architecture.

1. Map obligations to the Schedules. Conduct a legal mapping exercise to identify exposure under Schedule 1 (Category A) and Schedule 2 (Category B). This means auditing corporate practices against bribery, fraud, WHS, environmental, taxation, modern slavery, industrial relations, workers compensation, and other listed statutes (Schedules 1 and 2). For each risk area, document controls, training, incident registers and remedial actions.

2. Strengthen governance and recordkeeping. The CEO may consider whether the supplier had effective operational and internal control systems and whether the supplier cooperated and investigated the conduct (r 7(d), (f), (g)). Implement clear delegations, record retention policies, incident investigations, disciplinary procedures and executive oversight to demonstrate effective standards of operation and remediation where problems arise.

3. Prepare show cause materials and respond promptly. If served with a show cause notice the supplier has at least seven days to respond (r 13(2)). Timely, substantive denial or admission, supported by documentary evidence and evidence of remedial action, matters. Silence or failure to deny may enable debarment in Category A matters under r 5(2)(c), so suppliers should not treat the show cause process lightly.

4. Manage senior officers and succession risks. Given the affiliate definitions and attribution to senior officers, review board and senior management appointments, conflicts checks, and consider steps to insulate the entity from individuals with adverse conduct histories. In mergers, acquisitions or restructures, conduct due diligence on any target’s debarment history, successor exposure and shared officers (r 4).

5. Monitor subcontractors and supply chains. Because r 19(2) prevents award where a subcontractor is debarred or suspended, require contractual warranties and monitoring clauses in supplier agreements, perform due diligence on subcontractors, and include provisions to cure subcontractor noncompliance or to substitute providers.

6. Use and negotiate supplier undertakings carefully. If the CEO proposes or offers an undertaking, review its terms for achievability and cost, and set up compliance programmes to satisfy ongoing reporting, external audits or employee exclusions required by r 23. Note the CEO’s power to terminate undertakings for noncompliance (r 24(1)) and the supplier’s right to terminate (r 24(2)); ensure termination triggers and consequences are understood.

7. Engage early with investigations. Cooperation with official investigations and making full, timely restitution or remediation are factors the CEO may take into account (r 7(b), (g), (h), (i), (j)). Early engagement can generate evidence of mitigation for the CEO’s public interest calculus and potentially reduce debarment periods.

8. Preserve review rights. If suspended or debarred, preserve rights to SAT review where available (r 18, r 25(4)), and preserve administrative records and decision timelines to support judicial or tribunal review. Ensure all notices are served to the specified contacts and that the Department CEO is provided with the correct email address for notices if email service is to be relied upon (r 28(2)).

9. Keep the three year windows in mind. Maintain records of convictions, penalties and debarment dates because the regulation imposes three year limits for reliance on convictions, penalties, corresponding debarments and conduct (r 8(2)). Where conduct dates risk falling within the three year window, plan mitigation and remediation strategies accordingly.

10. Document public communications and reputational management. Given that the public register will identify debarred suppliers and periods only (r 21), plan communications for customers and counterparties where reputational fallout could occur. If reasons are required for stakeholders, obtain the CEO’s debarment notice (r 14(2)(a)) or seek review to ensure adequate reasons have been provided.

11. Legal and compliance budget. Anticipate costs associated with investigations, external audits and potential SAT proceedings. Supplier undertakings often include ongoing compliance and reporting costs (r 23(c)-(e)). Budget and appoint internal compliance leads to reduce the risk of recurrence.

12. Keep insurance and tax compliance up to date. Many Schedule items relate to taxation, WHS and regulatory offences. Maintain tax lodgements, workers compensation compliance, WHS systems and environmental permits to reduce exposure to debarment triggers in Schedules 1 and 2.

13. Monitor legislative and schedule amendments. The Schedules have been amended since inception (see compilation table and amendment entries SL 2023/133 and SL 2024/134). Ongoing monitoring of changes to Schedules is required to understand newly captured conduct and to update corporate risk registers.

Taken together, these steps position a supplier to argue mitigation, avoid silence in procedural opportunities, and respond to the CEO’s balancing of public interest factors listed in regulation 7. Where debarment occurs, early legal advice on SAT review, reconsideration requests under r 25, and negotiating viable undertakings under Part 7 will be central to restoring procurement access.