Are UK contracting authorities publishing contract award information?

The answer is: not all and not all of the time irrespective of the clear legal commands to do so. OpenOpps looked into the practice for contracts published on ContractsFinder and this is what they found out:

On average, central government departments had 23% of tenders incomplete. For example, Department for Education has issued 70 tenders and just 43 contract awards (39% incomplete) and the Department of Health has issued 101 tenders and only 33 contract awards (67% incomplete). The better performers were FCO Services and the Department for Transport. FCO Services has issued 187 tender opportunities on Contracts Finder, but published 186 contract awards (only 0.5% incomplete). The Department for Transport has published 97 tender opportunities and 94 are complete (4% incomplete).

As I suspected, local Government is a lot worse:

This trend of leaving tenders incomplete is less greater in local government where, on average 65% of the notices are incomplete. According to our analysis, 114 local government publishers of tender notices have never published a contract award notice, whilst only 37 local government publishers had published all of their contract awards notices, and 17 of these had published just one tender notice and one contract award. Clearly, the lack of contract award notices is not the only issue, low publishing numbers are also a problem. For example, Cambridgeshire County Council managed to publish just five tenders into Contracts Finder, when they’ve managed to publish 173 tender notices elsewhere since January this year.

As the data analysis was done only on ContractsFinder it is possible that for contracts above the EU thresholds contracting authorities are complying with the requirement to publish the results instead on the Tenders Electronic Daily.

Links I Liked [Public Procurement]

1. Why is so much ICT procurement not appearing on ContractsFinder? SpendMatters reports on some research carried out by Innopsis on this topic. The smoking gun - which I agree with - is framework agreements. As argued here before, framework agreements are a black hole in what concerns contract data.

2. MOD publishes a refreshed SME policy.

3. The Public Contracts Regulations 2015 has been amended by the Public Procurement (Amendments, Repeals and Revocations) 2016. Great to see the that section 1 no longer refers to the Europe 2012 strategy, but one has to wonder - again - why the rush to ge tthe PCR2015 out the door in February last year.

4. Slovenia reforms its public procurement law, right before the deadline to transpose Directive 2014/24/EU.

5. Not all is good in Bulgarian public procurement. Further examples here.

Public Contracts Regulations 2015 - Regulation 112

Regulation 112 - Publication of information on Contracts Finder about contracts awarded

Regulation 112 caps Chapter 8 with a set of rules on how contracting authorities are to publish contract award information on Contracts Finder. As we are talking about below-thresholds contracts, the obligation this is a purely national obligation. As for the information that needs to be uploaded, it is fairly similar to what is required in Regulation 108 with a significant addition. Under Regulation 112, contracting authorities have to disclose if the contractor is an SME or VCSE.

There is no confusion on what constitutes an SME as paragraph 4 refers to the definitions on Commission Recommendation of 6 May 2003. As for what constitutes a VCSE, this is the first time I encounter this acronym which apparently stands for "voluntary, community and social enterprise". Paragraph 4 defines VCSE as "a non-governmental organisation that is value-driven and which principally reinvests its surpluses to further social, environmental or cultural objectives." Would it not be simpler to just refer to third-sector organisations? Or charities (although this is a more restricted definition)?

The usual restrictions on disclosing information (impeding law enforcement, affecting legitimate commercial interests or fair competition) which we have seen before are applicable here as well. 

Finally, guidance issued by the Minister for the Cabinet Office shall be regarded but there is no obligation to provide explanations or reports to the Minister in case it is not followed.

Public Contracts Regulations 2015 - Regulations 110

Regulation 110 - Publication of contract opportunities on Contracts Finder

This Regulation establishes the obligation for contracting authorities to publish contract award opportunities on Contracts Finder, in addition to any other advertising means they may find appropriate. If the contracting authority does indeed use any other advertising means, the required information has to go on Contracts Finder within 24 hours of said publication (paragraph 3). Note that this regulation applies to any contract award opportunity (paragraph 6) and not to a more restricted definition such as contract notice. In consequence, even prospective information which would be considered as a prior information notice had it been covered by Part 2, is deemed an opportunity for the purposes of this Regulation (paragraph 7).  

Paragraph 5 defines what constitutes an advertisement of an opportunity. Anything activity that puts the contract opportunity out on the public domain or that targets a class of economic operators (i.e., a trade journal, Linkedin group etc) constitutes an advertisement and triggers the obligation to advertise on Contracts Finder and needs to be advertised for a non-disproportionate period of time (paragraph 9). On the other hand, if the information is passed to only a number of economic operators which have been selected for that purpose, then no advertisement is carried out and there is no obligation to upload the information to Contracts Finder. The textbook example here are framework agreements, singled out explicitly in paragraph 5(b).

As for what information should go on Contracts Finder, paragraph 8 sets the following requirements:

(a)the time by which any interested economic operator must respond if it wishes to be considered;

(b)how and to whom such an economic operator is to respond; and

(c)any other requirements for participating in the procurement.

The advertisement obligation covers also free and unrestricted access to any relevant documents (paragraph 12 and 15) and the whole period of the opportunity, so details cannot be taken out of Contracts Finder before the deadline (paragraphs 10 and 11). There are some exceptions to paragraph 12's disclosure obligation on paragraphs 13 and 14, namely if "relevant reasons" as conceived by Regulation 53(3) and (4) are applicable.

 

Finally, as with some previous regulations, according to paragraph 16, contracting authorities "shall have regard to any guidance" which the Minister for the Cabinet Office may decide to issue. This "compliance" obligation only covers guidance related to the form and manner of the publication on Contracts Finder and the definition of what is a non-disproportionate period of time for the opportunity to stay available on the website. 

Public Contracts Regulations 2015 - Regulation 108

Regulation 108 - Publication of information on Contracts Finder about contracts awarded

This Regulation establishes the obligation for contracting authorities to publish on Contracts Finder certain information about contract awards. This obligations kicks in once the contract award notice has been sent to the EU Publications Office or a contract has been awarded under a framework agreement. According to paragraph 4, contracting authorities have to comply within a "reasonable time", whatever that may be.

Paragraph 2 defines what information is to be submitted to Contracts Finder (name of contractor, date and value) but paragraph 3 establishes exceptions to this rule. These exceptions are identical to the ones found on Regulation 50(6) for the information that is to be submitted to the EU Publications Office. Speaking of which, the contract award notice must not be published on Contracts Finder before it is entitled to do so under Regulations 52(3) and (4).

As with the previous two Regulations, any guidance produced by the Minister for the Cabinet Office shall be regarded by contracting authorities (paragraphs 6-8). Contrary to Regulation 107 there is no indication of consequences for the contracting authority in case it does not do so.

Similarly to the submission of the tender notice of Regulation 106, it is possible that an automatic system may be put in place to scrape the contract award data from the EU Publications Office, saving the contracting authority the duplicate work of doing it again for Contracts Finder. Mandatory e-procurement cannot come fast enough.

 

Public Contracts Regulations 2015 - Regulation 106

Regulation 106 - Publication of information on Contracts Finder where contract notices are used

We can find in this Regulation the rules applicable to the publication of information on the national portal Contracts Finder. According to paragraph 1, after a contract notice is sent to publication to the EU Publications Office, the contracting authority shall make the same information available on Contracts Finder within 24 hours of being eligible to do so. The drafting of this paragraph could be improved as on a first read the paragraph appears to imply that the information needs to be published on Contracts Finder within 24 hours of being remitted to the EU Publications Office, but that is not the case.

Paragraph 2 sets what contract notice information must be published on Contracts Finder, such as the web address where documents can be found, timescales, points of contact and other requirements.

Paragraphs 3 to 5 creates an obligation of compliance for further guidance which may be issued by the Minister for the Cabinet Office regarding this matter. One of the situations where such guidance may be forthcoming is on the possibility of the Cabinet Office automatically extracting the data from the EU Publications Office without any intervention by the contracting authority.

At the time of writing (August 2015) the only guidance I could find related with publication of information on Contracts Finder was The Guidance on the new transparency requirements for publishing on Contracts Finder which does not tackle the issue of scraping the contract notice information automatically from the EU Publications Office. Interestingly enough, said guidance claims not to be statutory but is still to be observed by force of paragraph 3.

Links I Liked [Public Procurement]

1. The Crown Commercial Service wants help re-designing its digital services. My suggestion is to put all the damn procurement data available on a easily searchable database format. No, excel spreadsheets are not what I am thinking about. But that is for the ex-post, while the Digital Services Team is looking for help on what the actual service should look like and how it should operate. I think it is a great idea to have this "client centered" approach and other administrations (even in the UK) should take notice...

Having said that I have a queasy feeling about a new Request for Proposals idea. Much better to evolve what I developed a couple of years ago with the simplified open procedure than to enhance the attractiveness of non-competitive award procedures.

2. Speaking of data dumps, the "old" Contracts Finder is now available as an archive. Kudos for that.

3. Danger zones in the new Public Contracts Regulations 2015? Not necessarily the ones I would have chosen. For example I would consider the new "light touch" regime as highly dangerous area but hey, it brings "flexibility". I remain bullish that practice under the light touch regime will become worse, not better.

4. Interoperability will be key to make e-procurement work (in Spanish). Very, very true, particularly when we are talking about cross-border issues. Electronic solutions can as easily facilitate cross-border procurement if standards are use, though the opposite is true as well. Just imagine the web without HTML or email without an underlying standard. Minitel anyone?

5. Bad procurement behind the US Office of Personnel Management data breach? A 36 hour (!) turnaround for a $20 million credit report services contracts raises more than just eyebrows. Although the title is slightly misleading as the record turnaround time does not appear to have been for the underlying IT contract.