Fisking the UK Government response to the NAO procurement report - Part II

As promised yesterday, here's the second part of the fisking of the UK Government response to the NAO report on public procurement, focused on the "claims" section of its response:

This is, frankly, pure obfuscation by means of mixing up completely different things together in the same answer.

It is true that Regulation 32(2)(c) does provide grounds for the exceptional use of the negotiated procedure without prior notice. However, as I said multiple times in this blog that doesn't mean that *every* contract in *any* emergency situation will actually permit the use of said procurement mechanism. More so, incompetence and lack of care are not grounds for the use of the negotiated procedure under that Regulation 32(2)(c). So, yes, by awarding contracts directly when they should not have been awarded and transforming an exceptional practice into a normal occurrence, yes the Government ripped up the procurement ruleset.

Then we have the reference to Japan, New Zealand and Finland, as if they were subject to the same exact rules. Finland is, but the Government provides no information to ascertain its claim. Funny enough, they do not make any comparisons to Ireland nor do they justify the decisions to concentrate PPE procurement in the NHS Supply Chain. Did those other countries do the same?

The Government is correct in its assessment that the shortest competition you can run is 25 days. What it forgets to include here is that most contracts were awarded in May, June and July implying that there was plenty of time to run accelerated procedures for them. Since the negotiated procedure can only be used if the accelerated procedures are unable to solve the pressing need, then obviously the lack of foresight/care in March, April and May does not constitute a ground for the use of the negotiated procedure in May, June or July.

Speaking of PPE, which again was not the focus of this NAO report, the Government makes "no apology for doing everything to secure as much PPE as quickly as possible." Truth be told, what the Government should be apologising for is why it was needed to source so much PPE without competition and at a short notice, not to mention why is so much rotting away in Felixstowe in the meanwhile.

But what about all the other non-PPE contracts tendered directly? Test and trace anyone? Ventilators?

Again, a non-answer answer. No one claimed there was a secret referrals inbox. The crux of the matter is why there was a VIP route created when a single route with everyone being treated equally would have been good enough. This second VIP route is IMHO completely illegal since it goes beyond what was strictly necessary to source the PPE needed. This is confirmed by the Government's claim that both routes followed the same process, thus begging the question why the need to distinguish where the lead was coming from?

The Government also does not address the gaping hole in success rates between the two routes. Even if the steps were the same, why was the VIP route more successful by an order of magnitude? Were the leads better? Or simply they were being processed more quickly because they came via said VIP route?

Not much for me to say here as for now there is no evidence supporting the claim. And the directness of the reply is a marked difference of the woolly answers provided so far.

Well, if they only show up online months after the fact it is not really transparency since by then the damage will be done and everything connected with it a proverbial "fait accompli."

Once more there are questions the Government is not answering here. Because it has turned what was exceptional into a daily occurrence there was an increased necessity for the ex post transparency.

Also, since these contracts were being centralised the Government missed the opportunity to automate the process of publishing those contracts online and in full. Now *that* would be a commitment to transparency. Publishing award values months after the contract has been performed does not really cut the transparency mustard in 2020.

Yet another obfuscating answer by the Government. If you award contracts directly, then by default the award happens before the contract starts to be performed. Even if it is just a phone call. I can understand why some details could take a few days to sort out, but not months after the contract started being performed which is what was seen in some instances.

The Government then uses its same old line of PPE and the eight checks. There are *plenty* of other contracts beyond PPE where questions are being asked about, but about those the Government is not interested to talk about since it cannot play the 'protecting the front line staff' card.

I think this one is easy to answer. The Government can obfuscate all it wants but by definition a negotiated procedure without competition is not a transparent way of awarding contracts.

Telling now, almost 9 months into the pandemic, how the awards were allegedly done  in the most generic terms possible, once more does not constitute transparency.

Plus, just today the NAO published its report on PPE