Not all contracts are showing up on ContractsFinder

Last week Ian Makgill from OpenOpps and SpendNetwork published this stat:

Having compared all of the opportunities that we’ve gathered over the past two years, with all of the opportunities on Contracts Finder, we found nearly 100,000 tenders that never made it to Contracts Finder, that’s 73% of all the tenders published in England.1 This is despite the recommendations in Lord Young’s 2015 report that all opportunities above certain thresholds should be published to Contracts Finder.

It's a big number, but one we should not be surprised to see. First, according Regulation 109 PCR2015 below the EU financial thresholds the obligation covers Central Government (from £10,000 upwards), NHS and sub-central contracting authorities (from £25,000 upwards) but not those from authorities based in Scotland, Wales or Northern Ireland.

Nonetheless this is another example of poor legislative drafting, one that does not take into account neither incentives nor the usual way contracting authorities operate. Assuming the legislative change was introduced because not enough contracts were being advertised, the status quo ante is contracting authorities do not see an advantage in advertising. As such, specific incentives need to be provided to get contracting authorities to change their practice.

Those incentives tend to be of the "stick" kind, ie negative consequences for non-compliance. But in a country with limited use of judicial review mechanisms and where secrecy of contracts awarded is the norm and not the exception the risks of being found out are quite limited. I am not arguing for the courts to be stuck with low value procurement challenges (ahem, I'm looking at you Portugal) but without clear consequences and enforcement mechanisms practice will not change.

This is, after all, the country where it is apparently acceptable for a contracting authority in large scale projects to take shortcuts with its record keeping, so who cares with what is happening in low value contracts?

Public Contracts Regulations 2015 - Regulation 109

Regulation 109 - Scope of Chapter 8

This Regulation defines the scope of Chapter 8 which applies to contracts with a value below the thresholds of Regulation 5. This chapter is particularly important as it constitutes the first time contracts below-thresholds are subject to regulations. As such, the rules contained within Chapter 8 are purely national.

Most of the Regulation deals with exceptions to the coverage rules as not all contracts excluded from application of Part 2 are subject to Chapter 8. Contracts that would not be covered for reasons other than value are not included for example. Contracts with a value below £10,000 are also excluded.

There are also exceptions dependant on the contracting authority and the contract value. As such, contracts valued at less than £25,000 and awarded by the NHS or a sub-central contracting authority are not covered either. The NHS benefits from another derogation, as the procurement of health care services for the purposes of the NHS as defined by National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013(1) are excluded as well.

Finally, Regulations 110 and 112 are not applicable when the contracting authority is a maintained school or an Academy.