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On 30 June 2022, the UK Government’s Cabinet Office published the policy paper ‘Transforming Public Procurement - our transparency ambition’ (the ‘ambitions paper’, or the ‘paper’). The paper builds on the Green Paper and the Government’s response to its public consultation, and outlines ‘proposals to dramatically improve transparency of UK public contracts and spending’. The ambitions paper provides a vision well beyond the scant (almost null) detail in the Procurement Bill (clause 88), which is attracting a number of proposed amendments to try to enshrine in law the basic elements now spelled out in the paper.
In this post, I reflect on the need to amend the Procurement Bill to bind (successive) UK Governments to the current transparency aspirations. I also comment on other aspects of the paper, including persistent issues with the lack of granularity in planned access to procurement data, which I already raised in relation to the Green Paper (see here, Q27 and Q29, and here).
A necessary amendment of the Procurement Bill
The additional level of detail in the paper is welcome and helpful in understanding how the UK plans to operationalise its procurement transparency ambitions. However, a first point to make is that the publication of the ambitions paper should in no way deactivate concerns on the insufficiency of the Procurement Bill to ensure that a significant change in the way procurement information is captured and disseminated in the UK is achieved. In particular, the wording of clause 88(1) has to change.
It is nowhere close to good enough to simply have a weak enabling clause in legislation, stating that ‘An appropriate authority may by regulations make provision requiring certain information to be shared in a particular way, including through a specified online system’. The obvious first shortcoming is that the authority may do so, which also means it may not do so. The second is that the indication of a specified online system as a possible particular way of sharing information seems to take us back quite a few years. If not online (and if not as open data), how would a transparency aspiration be commensurate to the UK’s commitment to e.g. the open contracting data standard?.
Given the high level of aspiration in the paper, a more solid legal grounding is required. My proposal, which builds on discussions with the open contracting community, as well as the amendment already tabled by Baroness Hayman of Ullock, would be to amend clause 88(1) of the Procurement Bill, so it reads:
'An appropriate authority shall by regulations make provision requiring certain information to be shared through a specified online system. Such online system shall, at a minimum, establish and operate a freely accessible, machine-readable and licence-free digital register for all public procurement notices under this Act, wherein all information will be regularly updated in accordance with the time limits for the publication notices set out in the Act.'
Comments on the aspirations paper
Once the general commitment to having single digital register is strengthened, we can move on to consider the detail of what (and how) should be published in the register, what should be kept for restricted use, and what further transparency-related interventions can build upon it—e.g. the creation of a dashboard with useful data analytics, or the interconnection of the register with other sources of e.g. relevant anti-corruption information (for discussion, see here). There are some indications of what the UK aspires to do, but also some lack of clarity in the paper, and some clear risks of undesirable knock-on effects from the maximalist approach to procurement transparency it embraces.
Vision
The aspirations paper indeed starts from a maximalist position, indicating that the vision is ‘to create a fully transparent public procurement system’. However, there are two clear limitations to that approach.
First, the proposal itself includes a proportionate approach to transparency requirements: ‘we want to ensure that we are only asking for the most detailed information - contract documents, performance markings etc - from the largest contracts, in order to maintain transparency without bogging procurement teams down in unnecessary bureaucracy for low-value contracts’. This immediately means that a potentially large volume of (local) procurement will not be subjected to (some aspects) of the new transparency regime. Moreover, as the Procurement Bill stands, there would also be significant exclusions from important transparency obligations e.g. in relation to light touch contracts (see here, section 7, issues #21 on performance-related KPIS and non-performance notices, and #23 on modification notices). That already falls short of generating a ‘fully transparent’ procurement system, precisely in relation to the award of contracts where the risk of capture can be high.
Second, the publication of procurement information remains subjected to the general exclusions and carve-outs resulting from i.a. the Freedom of Information Act 2000 (FOIA). Interestingly, the ambitions paper does not refer to it at all, despite the Green Paper having made clear that, in the absence of FOIA reform (which is not sought), ‘only data which would be required to be made available under FOIA … would be publishable’ (at 167). Regardless of the paper’s silence on the issue, FOIA will continue to play a significant role in establishing which level of detail is disclosed, in particular in relation to disclosure of information not captured as a matter of mandatory disclosure in the relevant (award) notices, and perhaps even in relation to that.
The importance of preserving commercial confidentiality in the procurement setting is clear, and was also a clear focus of concern in the Green Paper consultation, leading e.g. to the Cabinet Office dropping its initial ambition of publishing tenders received in procurement procedures. As the Government’s response stressed: ‘We have considered the potential impact of public disclosure of information, such as (but not limited to) tenders. The feedback we received from stakeholders was that publishing tenders at this stage could prejudice future competitions that may run if the initial one is aborted and re-run for any reason, as bids will have been disclosed to the competition. As a result, we will not require disclosure of tenders submitted in a procurement’ (at 221).
Therefore, the system will not (and should not be) fully transparent. What is more useful is to see what the vision wants to enable in relation to procurement data and related analytics and insights. The vision indicates that the UK Government would like for everyone ‘to be able to view, search and understand what the UK public sector wants to buy, how much it is spending, and with whom’. This is a more realistic aspiration that does not necessarily entail total transparency and, given some safeguards and a more granular approach to the disclosure of differing levels of detail in the information (see here and discussion below), it should be welcome. Ultimately, the Government wants the future platform to help people understand:
current and future procurement opportunities created in the UK public sector; including pipelines of future work. [This should open up opportunities within the public sector to small businesses, driving down prices, increasing innovation and improving the business landscape across the country];
how much money the public sector spends on purchasing essential goods and services. [This should] allow taxpayers to see how much is being spent through procurement on and in their local area, who it is spent with and how it is delivering on local priorities. [Moreover, this should show] which routes to market are available to contracting authorities, and how much has been spent through each of those. [This should] give contracting authorities the data they need to collaborate better, drive value for money and identify cost savings in their procurements, so they can monitor for signs of waste and inefficiency;
which contracts finished on time and on budget–and which did not. [This means providing more detail across] the true lifecycle of government contracts, including how much the final amount spent on a contract differs from its original intended value, or how often contracts have been extended;
which companies have been excluded from winning future work due to fraud, corruption or persistent poor performance; [and]
who is really benefiting from public money - not just the companies winning contracts but the ownership of those companies
This list (which regroups the longer and slightly repetitive list in the paper, as well as aggregate the purpose for the disclosure of specific information) points to three categories. First, a category where the information is purely notice-based (categories 1, 4). Second, a category where the related insights should be easily derived from the information included mandatory notices (categories 2 and 3). Third, a category (mainly 5) that concerns non-procurement information and will require either (a) embedding disclosure obligations in the procurement life-cycle (thus raising the red tape and participation costs), or (b) interconnection with non-procurement databases.
The first category is relatively unproblematic, although there is an inherent tension between the disclosure of planned procurement opportunities and the facilitation of collusive practices (more details below).
The second category probably points at the need of considering the extent to which data dashboards should differentiate between different users, including the level of detail (and timeliness) of the information published in each of them (also discussed below).
The third category points at the need to consider issues of design and interoperability of the platform, as it would be preferable for it to be susceptible of plugging into other databases. Moreover, there are other (anti-corruption) functionalities that could be enabled, such as cross-checks against databases of political donations to identify potentially problematic relationships between procurement awardees and political donors. In relation to this category, and to anti-corruption efforts more generally, the ambitions paper is not particularly ambitious. However, the creation of a solid procurement data architecture on the basis of OCDS could facilitate those extensions in the future.
The future platform
The ambitions paper indicates that the Government seeks to operationalise the new transparency regime through two main elements (as the ‘tell us once’ supplier register is a parallel and distinct intervention):
The introduction of a number of new procurement ‘notices’, covering the entire procurement lifecycle from planning through to contract expiry
A digital platform which will display all of this information publicly, with API access to data published to the Open Contracting Data Standard (OCDS). Once we have completed the core notice development, over time we also plan to build a number of useful registers, and explore integrating commercial data analysis tools
What this means is that the future platform will initially simply bring into one place what is currently published across a scattered landscape of transparency tools (see section 3.1 in the paper). That is an improvement, but the more significant change will only come when register and dashboard insights get developed. Importantly, however, the design of these registers and dashboards need to be very carefully considered and linked back to the intended (and likely) use by different audiences. However, the ambitions paper does not seem to consider this need and rather seeks to establish a system accessible to any type of data user on an undifferentiated form (see section 4.4).
Research has shown that most of the gains from procurement transparency concern ex ante disclosure of information [M Bauhr et al, ‘Lights on the shadows of public procurement: Transparency as an antidote to corruption’ (2020) 33(3) Governance 495-523]. Conversely, the publication of ex post information is particularly risky in relation to e.g. anticompetitive practices, as well as corruption, and can generate limited benefits as it is unlikely that there will be a sustained level of engagement with that information by most stakeholders with a theoretical motivation to engage in procurement oversight [N Köbis, C Starke and I Rahwan, ‘The promise and perils of using artificial intelligence to fight corruption’ (2022) 4 Nature Machine Intelligence 418-424].
In that regard, it is particularly problematic that the aspirations paper seems to indicate that the UK Government would be publishing (in real time, for everyone to see) information such as: ‘Analysis of bid and win rates, analysis of supplier & bidder beneficial ownership patterns, general market trends analysis’. This should concern regulators such as the Competition and Markets Authority, as well as the Serious Fraud Office. While the latter should absolutely have access to that information and market intelligence, its public disclosure (in detail, with no time lag) could be counterproductive and help, rather than hinder, corrupt and collusive practices. In that regard, it is of paramount importance that those authorities (and others, such as the National Audit Office) are involved in the design of the system—which is not entirely clear from the ‘user-centric’ approach embraced in the aspirations paper (see section 4.1).
A multi-layered level of transparency
In relation to these risks and issues, it is necessary to reiterate a call for a more nuanced and discriminating approach than the one that transpires from the aspirations paper. As stressed in the response to the Green Paper consultation (here Q29), while it can but be endorsed that the platform needs to be created, and the data automatically fed into it in accordance with OCDS and other technical interoperability requirements, a key feature of the new system should be its multi-layered level of access/transparency.
Analysis carried elsewhere (see here) supports a nuanced approach to the level of transparency created by public contract registries similar to the envisaged central digital platform, which needs to fall short of the full transparency paradigm in which it seems to have been conceived. As a functional criterion, only the information that is necessary to ensure proper oversight and the effectiveness of anti-corruption measures should be disclosed, whereas the information that can be most damaging for competition should be withheld.
Generally, what is needed is granularity in the levels of information that are made accessible to different stakeholders. A full transparency approach whereby all information was made available to everyone would fall very short from the desired balance between the transparency and competition goals of public procurement. A system based on enabling or targeted transparency, whereby each stakeholder gets access to the information it needs for a specific purpose, is clearly preferable.
In more specific terms, it is submitted that:
The content of the central digital platform should not be fully available to the public. Access to the full registry should be restricted to public sector officials under a strong duty of confidentiality protected by appropriate sanctions in cases of illegitimate disclosure.
Even within the public sector, full access to the central digital platform should be made available on a need-to-know basis. Oversight entities, such as the National Audit Office, the Serious Fraud Office, or the Competition and Markets Authority, as well as the new public procurement review unit (PPRU) should have full access. However, other entities or specific civil servants should only access the information they require to carry out their functions.
Limited versions of the central digital platform that are made accessible to the public should aggregate information by contracting authority and avoid disclosing any particulars that could be traced back to specific tenders, specific contracts, or specific undertakings.
Representative institutions, such as third sector organisations, journalists or academics should have the opportunity of seeking full access to the central digital platform on a case-by-case basis where they can justify a legitimate or research-related interest. In case of access, ethical approval shall be obtained, anonymization of data attempted, and specific confidentiality requirements duly imposed.
Delayed full access to the central digital platform could also be allowed for, provided there are sufficient safeguards to ensure that historic information does not remain relevant for the purposes of protecting market competition, business secrets and commercial interests.
Tenderers should have access to their own records, even if they are not publicly-available, so as to enable them to check their accuracy. This is particularly relevant if public contract registries are used for the purposes of assessing past performance under the new rules.
Big data should be published on an anonymised basis, so that general trends can be analysed without enabling ‘reverse engineering’ of information that can be traced to specific bidders.
The entity in charge of the central digital platform should regularly publish aggregated statistics by type of procurement procedure, object of contract, or any other items deemed relevant for the purposes of the public accountability of public buyers (such as percentages of expenditure in green procurement, etc).
The entity in charge of the central digital platform should develop a system of red flag indicators and monitor them with a view to reporting instances of legal non-compliance to the relevant oversight entity, or potential collusion to the competition authority. In that regard, the earlier attempts (eg through the abandoned ‘Screening for Cartels’ tool) should be carefully analysed to avoid replicating past errors.
