Monthly Archives: February 2018

Where next for Open Contracting in the UK?

[Summary: reflections and ideas building on conversations at the OGP National Action Plan workshop in Bristol yesterday with ideas about a fund for scoping studies, strengthening the ICO role around contract disclosure, and better national Management Information (and a continuation of this blog’s ‘Open Contracting’ season: I promise I’ll write about some other things soon!]

Open Contracting has been a theme in the last two UK Open Government Partnership National Action Plans. In 2013 Commitment 12 said:

*The UK government endorses the principles of open contracting. We will build on the existing foundation of transparency in procurement and contracting and, in consultation with civil society organisations and other stakeholders, we will look at ways to enhance the scope, breadth and usability of published contractual data. *

In 2016, the Open Contracting moved up to slot number 5, with a commitment to:

…implement the Open Contracting Data Standard (OCDS) in the Crown Commercial Service’s operations by October 2016; [and to] begin applying this approach to major infrastructure projects, starting with High Speed Two, and rolling out OCDS across government thereafter.

As we head towards the next National Action Plan in 2018, it’s time to focus on local implementation. Whilst government policies on procurement, and even on asset disposals (e.g. selling off government land), provide clear guidance on transparency and publication of data and documents (including full contract text), local implementation is sorely lacking.

The day after Carillion’s collapse it was only possible to locate less than 30 of the 400+ government contracts with Carillion through the national Contracts Finder dataset. And none had the text of contracts attached. Local authorities continue to invoke ‘commercial confidentiality’ as a blanket reason to keep procurement or asset sale information secret, increasing corruption risks, and undermining opportunities to promote value for money, local economic development and strategic procurement across the public sector.

When policy is good, but implementation is poor, what levers are there? At the recent Bristol workshop we explored a range of opportunities. In general, approaches fall into a few different categories:

  • Improving enforcement. There are few consequences right now for a government agency that is not following procurement guidance. Although local government is prone to resist new or strengthened requirements that come without funding, there may be opportunities to strengthen regulators, or increase the consequences of non-compliance. However, this often needs to rely on:

  • Better monitoring. It’s only when we can see which authorities are failing in their procurement transparency obligations, or when we can identify leading and lagging agencies when it comes to use of pre-procurement dialogues for public and supplier engagement, that targeted enforcement of key practices becomes possible. Monitoring alone can sometimes create incentives for improved practice.

  • Making it easier. Confusion over the meaning of commercial confidentiality may be preventing good practice. Guidance from government, or better design of software tools, can all help streamline the process of complying. Government may have a role in setting the standards for procurement software, as well as the data standards for publishing transparency procurement information.

  • Show the benefits. The irony of low compliance with procurement best practices on transparency is, well, that best practice is often better. It brings savings, and better services. A programme to demonstrate this has a lot of value.

So, what could this look like in terms of concrete commitments:

  • Scoping study support fund. Open Contracting has the potential to be win-win-win: efficiency for government, accountability to citizens, and opportunities for local businesses. But building multi-stakeholder support for new initiatives, and setting priorities for local action needs an understanding of the the current situation. Where are the biggest blocks to opening up information on procurement? Are the challenges policy or process? Where will leadership for change come from? How can different stakeholders work together to generate, share and use data and information – and to design better procurement processes? These are all questions that can be answered through a scoping study.

    Development Gateway, HIVOS and the Open Contracting Partnership have well-tested scoping study methods that have been used around the world to support national-level Open Contracting initiatives. Adapting this method for city or regional use, and providing kick-start funding to help local partnerships come together, assess their situation, and plan for change, could be a very effective way to catalyse a move from open contracting policy to local, relevant and high-impact practice.

    With just £100k investment, Central government could support studies in 10 or more areas.

  • Improved national metrics. As part of implementation of the last NAP commitment, the Contracts Finder platform now has a (very) basic statistics page, providing an overview of which public authorities are publishing their contracts. With the underlying open data, it’s possible to compute a few more metrics, exploring the kind of contracts different agencies are publishing information on, or assessing gaps between tender and award. However, central government could go a lot further in providing Business Intelligence dashboards on top of the data in Contracts Finder, and publishing much more accessible reports on policy compliance. The OpenTender.eu project demonstrate some of what can be done with the analysis of collated procurement data, calculating a range of indicators.

  • Empowering the Information Commissioner’s Office. The ICO has a key role in enforcing the public right to information, yet has a substantial backlog of cases, many including FOI requests relating to contracts. Support for the ICO to develop further guidance, monitor compliance and take enforcement activities against authorities who are hiding behind bogus commercial confidentiality arguments, could shift the balance from the current ‘closed by default’ position when it comes to the contract details that matter, to proper implementation of the open-by-default policy.

  • Extending FOI for contractors. Although the idea that the Freedom of Information Act should apply to any provider of public services, regardless of whether they are public of private sector, is one that has been put forward, and knocked back, in previous National Action Planning processes, it remains as relevant as ever. In light of the recent Carillion Collapse, and with outsourcing arrangements looking increasingly shaky, the public right to know about delivery of public services clearly needs re-asserting more strongly.

  • Improved model contract clauses. Earlier rounds of the OGP NAP have secured model contract clauses for national government contracts, focussing on provision of performance information. Revisiting the question of model clauses, but with a focus on local government, and on further requirements around transparency of delivery, would offer a parallel route to increase transparency of local service delivery, creating a contractual right to information, pursued alongside efforts to extend the legal right through FOI.

A mix of the commitments above would combine different levers: enforcement, incentives and oversight – with a chance to truly build effective open contracting. Within the wider UK landscape, for the OGP process to remain credible, we will need to see some serious and ambitious commitments, and open contracting is a key area where these could be made.

(Hat-tip to @carla_denyer for the framing of how to motivate government action used in the above, and to all at the Bristol @openGovUK workshop who discussed Open Contracting.)