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The ongoing secrecy saga of Javelin Park: Ernst and Young Value for Money Analysis

[Summary: the latest in Gloucestershire County Council’s Javelin Park secrecy saga (read up on recent episodes here, here and here)]

In the Information Tribunal ruling EA/2015/0254-6 (which led to the provision of a mostly unredacted copy of the 2013 UBB Javelin Park Incinerator Contract), paragraph 27 contains a reference to reports produced for Cabinet by Ernst and Young that provide the basis for the high estimated cancellation cost of the Javelin Park Incinerator.

I requested a copy of these documents from Gloucestershire County Council (GCC) in an FOI request, and following a long review process, have been provided with a heavily redacted copy of the Ernst and Young report has been provided under the Environment Information Regulations (EIRs).

What can we learn from the redacted copy?

The report provides updated Value for Money and Affordability analysis for the Javelin Park Incinerator contract. It was provided to the Council on 5th November 2015, ahead of the Cabinet approving a second ‘Financial Close’ of the Javelin Park Public Private Partnership project at their meeting of 11th November 2015.

This updates many of the figures given in the 2012 Annex 4 ‘Resource Implications’ that was provided in a fully unredacted form following the Information Tribunal ruling. It also provides a number of insights into the actions of the council to inject additional funding into the project.

Whilst the redactions mean there is litle new financial information here on which to update an understanding of the project Value for Money, I did take note of the following:

  • Due to the planning delays, a ‘Revised Project Planning’ (RPP) process was triggered. This allows for various costs and figures in the contract to be updated (See the 2013 contract §3.3). §5.5 of the report indicates that there are updated tonnage prices in force under the Revised Project Plan, with the prose suggesting these have increased. The prose also suggests that anticipated third-party waste revenues have decreased.

  • The report calculates the cost of a Force Majeure Planning Failure Termination. In November 2015 planning approval was fully in place, so this would have been on the basis of GCC excercising their right to turn down the Revised Project Plan (RPP) from UBB.

  • The report does not calculate the cost of a ‘Voluntary Authority Termination’ (the council choosing not to proceed with construction), but instead states that it “would anticipate a sum in excess of £100m”.

  • §4 of the Ernst and Young report states that: “any decision to terminate and pursue a landfill alternative would require a termination payment to UBB to meet costs already incurred. This cost, amounting to c£60m (as set out in Appendix A) has been added to the cost of the Landfill Alternative.” Appendix A is heavily redacted, so it is not possible to identify the basis for this figure, or why this figure of £60m is lower than the sum ‘anticipated in excess of £100m’. However, this could be the source of the £60m – £100m cancellation cost estimates cited by Cabinet members.

  • In the ‘Force Majeure Cancellation Costs’ calculations in Appendix 1, under sub-contractor breakage and redundancy costs, Ernst and Young note that no evidence is held on the actual costs expended by UBB to date, nor the sub-contract breakage costs that would actually be incurred.

  • As of November 2015, Eversheds had produced legal advice to the council on Procurement risks including risk of challenge (p. 3)

  • The affordability analysis (§1.2) “identifies that without the capital contribution [£17m] the Project is in breach of the Council’s affordability limit until 2024 but there after falls inside the affordability limit” and introducing the £17m capital contribution moves affordability to 2022.

At the November 2015 Cabinet meeting the Cabinet claimed savings from the project of £153m, based on the difference between a Landfill base scenario of £522m and project cost of £399m (once a £13m financial contribution from the council had been made). This assumes a waste flow of 60% recycling. The savings substantially erode (a c. 60% decrease in Net Present Value) with lower waste flow from higher recycling rates.

What is still redacted?

The vast majority of financial sums are redacted from the document, with with the authority invoking ‘regulation 12(5)(e)’ of the Enviromental Information Regulations (EIRs).

There are also a number of redacted sentences, where the nature of the sentence and the goal of redaction is unclear.

Are these redactions justified?

It is notable that in the contract FOI request Information Tribunal Ruling, for similar information in Annexe 4, the Tribunal stated (§77):

“No particular case is made as to how the redacted information in Annex 4 comes within regulation 12(5)(e) but, even assuming it did, we are satisfied the Commissioner’s assessment on the public interest is correct.”

However, they do ground some of this reasoning in the length of time between the information and the present day, stating:

Given that by April 2015 the Contract had long since been signed and there was controversy surrounding it we consider that there was a strong public interest in disclosure of all this detail. The Council’s Checklist says that release would have harmed its negotiating position, presumably in relation to a new procurement. We have commented on that scenario in general terms. Any information about the Council’s general financial position reflected in Annex 4 ought we think to have been in the public domain in any event.

This same reasoning would appear to apply in 2017 to figures from 2015.

The redactions in this report also cover ‘key changes in UBB proposal compared to the position at financial close’, including updated tonnage costs.

The World Bank Framework for Public Private Partnership disclosure calls for publication of tariff information, and revisions to tariff information: suggesting international best practice is for this information to be in the public domain, not kept confidential.

Where next?

Campaigners and County Councillors from a number of parties continue to oppose the incinerator. A complaint has been lodged with the Competition and Markets Authority and local residents have filed formal complaints with the Council’s monitoring officer over the conduct of Cabinet members reporting figures, largely it would seem based on the Ernst and Young report. There will undoubtedly be further updates in local press.

UK Open Contracting goes local in Gloucestershire?

[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.

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If you’re not familiar with Open Contracting, it’s a simple idea, described by the Open Contracting Partnership here.

The motion, introduced by our local Green Party councillor Sarah Lunnon, calls on the Council to:

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).

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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.

Looking ahead

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 (tim@timdavies.org.uk)

Join the Open Data Services Co-operative team…

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[Summary: Developer and analysts jobs with a workers co-operative committed to using open data for social change]

Over the last year I’ve had the immense pleasure of getting to work with a fantastic group of colleagues creating ‘Open Data Services Co-operative‘. It was created in recognition of the fact that creating and using distributed open data requires ongoing labour to develop robust platforms, support publishers to create quality data, and help users access data in the forms they need.

Over the last year we’ve set up ongoing support systems for the Open Contracting Data Standard and 360Giving, and have worked on projects with NCVO, NRGI and the Financial Transparency Coalition, amongst others – focussing on places where open data can make a real difference to governance, accountability and participation. We’ve been doing that with a multidisciplinary team, combining the capacity to build and maintain technical tools, such as CoVE, which drives an accessible validation and data conversion tool, with a responsive analysis team – able to give bespoke support to data publishers and users.

And we’ve done this as a workers co-operative, meaning that staff who joined the team back in October last year are now co-owners of the company, sharing in setting it’s direction and decision making over how we use co-op resources to provide a good working environment, and further our social goals. A few weeks back we were able to vote on our first profit distributions, committing to become corporate sponsors of a number of software projects and social causes we support.

The difference that being organised as co-op makes was particularly brought home to me at a recent re-union of my MSc course: where it seemed many others have graduated into a start-up economy which is all about burning through staff, with people spending months rather than years in jobs, and constantly having dealing with stressful workloads. Operating as a workers co-op challenges us to create good and sustainable jobs.

Any that’s what we’re trying to do again now: recruiting for two new people to join the team.

We’re looking for a developer to join us, particularly someone with experience of managing technical roadmaps for projects; and we’re looking for someone to work with us as an analyst – combining a focus on policy and technology, and ready to work on outreach and engagement with potential users of the open data standards we support.

You can find more details of both roles over on the Open Data Services website, and applications are open until 14th March.

Internet Monitor 2014 chapter on Data Revolutions: Bottom-Up Participation or Top-Down Control?

Internet Monitor[Summary: cross-posting article from from the 2014 Internet Monitor]

The 2014 Internet Monitor Report has just been launched. It’s packed with over 35 quick reads on the landscape of contemporary Internet & Society issues, from platforms and policy, to public discourse. This years edition also includes a whole section on ‘Data and privacy’. My article in the collection, written earlier this year, is below to archive. I encourage you to explore the whole collection – including some great inputs from Sara Watson and Malavika Jayaram exploring how development agencies are engaging with data, and making the case for building better maps of the data landscape to inform regulation and action.

Data Revolutions: Bottom-Up Participation or Top-Down Control?

In September 2015, through the United Nations, governments will agree upon a set of new Sustainable Development Goals (SDGs) replacing the expired Millennium Development Goals and setting new globally agreed targets on issues such as ending poverty, promoting healthy lives, and securing gender equality.1 Within debates over what the goals should be, discussions of online information and data have played an increasingly important role.

Firstly, there have been calls for a “Data Revolution” to establish better monitoring of progress towards the goals: both strengthening national statistical systems and exploring how “big data” digital traces from across the Internet could enable real-time monitoring.2 Secondly, the massive United Nations-run MyWorld survey, which has used online, mobile, and offline data collection to canvas over 4 million people across the globe on their priorities for future development goals, consistently found “An honest and accountable government” amongst people’s top five priorities for the SDGs.3 This has fueled advocacy calls for explicit open government goals requiring online disclosure of key public information such as budgets and spending in order to support greater public oversight and participation.

These two aspects of “data revolution” point to a tension in the evolving landscape of governments and data. In the last five years, open data movements have made rapid progress spreading the idea that government data (from data on schools and hospitals locations to budget datasets and environmental statistics) should be “open by default”: published online in machine-readable formats for scrutiny and re-use. However, in parallel, cash-strapped governments are exploring the greater use of private sector data as policy process inputs, experimenting with data from mobile networks, social media sites, and credit reference agencies amongst others (sometimes shared by those providers under the banner of “data philanthropy”). As both highly personal and commercially sensitive data, these datasets are unlikely to ever be shared en-masse in the public domain, although this proprietary data may increasingly drive important policy making and implementation.

In practice, the evidence so far suggests that the “open by default” idea is struggling to translate into widespread and sustainable access to the kinds of open data citizens and civil society need to hold powerful institutions to account. The multi-country Open Data Barometer study found that key accountability datasets such as company registers, budgets, spending, and land registries are often unavailable, even where countries have adopted open data policies.4 And qualitative work in Brazil has found substantial variation in how the legally mandated publication of spending data operates across different states, frustrating efforts to build up a clear picture of where public money flows.5 Furthermore, studies regularly emphasize the need not only to have data online, but also the need for data literacy and civil society capacity to absorb and work with the data that is made available, as well as calling for the creation of intermediary ecosystems that provide a bridge between “raw” data and its civic use.

Over the last year, open data efforts have also had to increasingly grapple with privacy questions.6 Concerns have been raised that even “non-personal” datasets released online for re-use could be combined with other public and private data and used to undermine privacy.7 In Europe, questions over what constitutes adequate anonymization for opening public data derived from personally identifying information have been hotly debated.8

The web has clearly evolved from a platform centered on documents to become a data-rich platform. Yet, it is public policy that will shape whether it is ultimately a platform that shares data openly about powerful institutions, enabling bottom up participation and accountability, or whether data traces left online become increasingly important, yet opaque, tools of governance and control. Both open data campaigners and privacy advocates have a key role in securing data revolutions that will ultimately bring about a better balance of power in our world.

Notes

  • 1: UN High-Level Panel of Eminent Persons on the Post-2015 Development Agenda, “A New Global Partnership: Eradicate poverty and transform economies through sustainable development,” 2013, http://www.un.org/sg/management/pdf/ HLP_P2015_Report.pdf.
  • 2: Independent Expert Advisory Group on the Data Revolution, http://www.undatarevolution.org.
  • 3: MyWorld Survey, http://data.myworld2015.org/.
  • 4: World Wide Web Foundation, “Open Data Barometer,” 2013, http://www.opendatabarometer. org.
  • 5: N. Beghin and C. Zigoni, “Measuring open data’s impact of Brazilian national and sub-national budget transparency websites and its impacts on people’s rights,” 2014, http://opendataresearch.org/content/2014/651/measuring-opendatas-impact-brazilian-national-and-sub-national-budget.
  • 6: Open Data Research Network, “Privacy Discussion Notes,” 2013, http://www.opendataresearch.org/content/2013/501/ open-data-privacy-discussion-notes.
  • 7: Steve Song, “The Open Data Cart and Twin Horses of Accountability and Innovation,” June 19, 2013, https:// manypossibilities.net/2013/06/the-open-data-cart-and-twin-horses-of-accountability-and-innovation/.
  • 8: See the work of the UK Anonymisation Network, http://ukanon.net/.

(Article under Creative Commons Attribution 3.0 Unported)