[Summary: Explore arguments for Gloucestershire County Council to support Open Contracting on Weds 7th December]
This Wednesday, on the eve of the Open Government Partnership summit in Paris, where I expect we’ll be hearing updates from Open Contracting projects across the world, my local County Council in Gloucestershire will be voting on an Open Contracting motion.
If you’re not familiar with Open Contracting, it’s a simple idea, described by the Open Contracting Partnership here.
commit to the Open Contracting Global Principles and takes action to ensure that: – By the end of 2017 complete information for all contracting processes over £1m, including details of the tender, award and contract process, the full text of contracts and amendments, and performance information, are proactively published;* – By the end of 2018 complete information is available for all contracting processes, over £500, is proactively published”
It goes on to state that:
“The presumption should be that the text of all contracts is open by default. Redactions should only be permitted: (a) at the explicit written request of the parties to the contract; (b) subject to the public interest tests of the Freedom of Information act; (c) with the minimum possible redactions; and (d) with full justifications for any redaction given.”
Passing this motion would, as far as I’m aware, make Gloucestershire the first local authority in the UK to explicitly commit to the Open Contracting Global Principles. Although the Gloucestershire motion may be, at least in part, a response to the opaqueness of one particular contract, by being framed in terms of the Global Open Contracting Principles, if offers something of a win-win for local business (greater access to opportunities), citizens (greater understanding of how funds are spent) and the authority (better deals, and better scrutiny of spending).
If you’re a Gloucestershire resident, consider contacting your Councillor to ask them to support the motion.
If you’re not – perhaps there might be an opportunity to bring forward an open contracting initiative in your own area? As it turns out – all the national policy foundations are in place in the UK – it just needs commitment from local areas to put them into practice.
The framework exists for local open contracting in the UK
Below are a few of the resources I found to address common questions raised about Open Contracting, and disclosure of contracting documents, when I was researching a short letter to local councillors on the motion.
National procurement policy already establishes a presumption in favour of disclosure The UK’s Public Sector Procurement Policy incorporates a set of Transparency Principles that state that:
There should be a presumption in favour of disclosing information, with exemptions following the provisions of the Freedom of Information Act – for example, on national security or commercial confidentiality grounds. The presumption in favour of disclosure should apply to the vast majority of commercial information about government contracts, with commercial confidentiality being the exception rather than the rule.
The principles go on to note that exemptions may be available for pricing information, but that “This means the way the supplier has arrived at the price they are charging government in a contract, ****but should not usually be grounds for withholding the price itself.****” (emphasis added)
Commercial confidentiality concerns can be addressed through good planning
In 2014, the Centre for Global Development facilitated a multi-stakeholder working group on Publishing Government Contracts, including public and private sector representatives. This group concluded that:
While there are legitimate commercial, national-security, and privacy concerns, they involve a small minority of contracts and can be addressed using a principles-based redaction policy. (From issue brief. Full report here)
The findings of the CDG working group show that a principle of ‘open by default’ is viable and practice.
Data protection concerns rarely justify non-disclosure of contracts
The Local Government Transparency Code 2015 provides guidance on managing any data protection concerns that may arise from contract publication, stating that:
The Data Protection Act 1998 also does not automatically prohibit information being published naming the suppliers with whom the authority has contracts, including sole traders, because of the public interest in accountability and transparency in the spending of public money.
Section 20 of the code addresses commercial confidentiality, stating that:
The Government has not seen any evidence that publishing details about contracts entered into by local authorities would prejudice procurement exercises or the interests of commercial organisations, or breach commercial confidentiality unless specific confidentiality clauses are included in contracts. Local authorities should expect to publish details of contracts newly entered into – commercial confidentiality should not, in itself, be a reason for local authorities to not follow the provisions of this Code. Therefore, local authorities should consider inserting clauses in new contracts allowing for the disclosure of data in compliance with this Code.
Model transparency clauses can be used to manage disclosure of structured performance information
Initial advocacy for a Model Transparency Clause in the UK was led by Institute for Government, and the national transparency clause, now included in the Model Services Contract, was developed with input from the National Council for Voluntary Services, Open Data Institute, and major private sector contractors. The extensive work that has taken place to develop models of disclosure that balance commercial practicalities and government and public interests in having access to clear information on contract performance, provides a tried-and-tested template for local authorities to build upon.
Contracts Finder and the Open Contracting Data Standard provide ready-made tools to implement disclosure
Contracts Finder is the government’s national platform for publication of contracting opportunities and awards. Local authorities are mandated to submit above-threshold procurements through the platform, but, as far as I understand, can also submit data on all procurement opportunities via Contracts Finder if they choose.
This means there is little extra cost for a local authority to make structured information on all its procurement processes available.
Some planning may be required to manage contract document publication effectively, but the technical complexity involved should be no more than making space available on a local council website for the documents, and linking to these from submissions to Contracts Finder.
Contracts Finder has recently launched an Open Contracting Data Standard API, allowing access to structured information about contracting processes, and a discovery phase is currently underway to improve the platform: with the opportunity to feed in ideas about how local authorities might wish to get their data back, to be able to display it for contracting transparency locally.
I hope I’ll be able to update this post with news of a successful motion on Thursday. In any case, I’ve been quite struck when working on the research above on the potential to really develop a local open contracting agenda in the UK.
Interested in getting involved too? Drop me a line and let’s explore (firstname.lastname@example.org)