The importance of public procurement transparency in times of crisis

Long-time readers of the blog will know of my views on transparency, particularly ex post transparency for contracts that have been awarded. There is an ongoing debate between the pros and cons of transparency, particularly its impact on competition. I am the opinion that publishing contracts in full should be the default option despite the obvious consequences for markets prone to collusion. I am not naïve. It may be sub-optimal from an economic perspective when the going is good, but that is a reasonable price to pay to build trust and accountability into the system. As for the questions about IP/business secrets, the publication of the contract should be included in the price of having access to public money. In the past I have compared this to playing poker with some of the cards on the table. The comparison still stands.

As mentioned many times here as well, procurement rules exist not because they enable great procurement, but because they reduce the risk of really bad decisions being taken. In other words, it is a protective legal framework that tries to restrict corruption, incompetence or cavalier approaches to public expenditure. They do not exist either to make the public sector life easy either, in the sense of respecting a wide field of discretion. Transparency in this context works like the sun as a disinfectant against negligence or illegal/criminal intent.

I find the current ex post transparency obligations to be woefully inadequate to enable/encourage compliance. The contract award notice obligation is seldom complied with and the contract modification self-harbour of Article 72 is not as useful as it should. At least in the UK, the COVID-19 crisis is showing us the limitations of these approaches.

Important contracts like those of the ventilators, the eBay one for PPE or NHSX contract for the contact tracing app are not public. We do not know what they entail, costs and obligations entered into or consequences for the future. I, for one, am not comfortable with this state of affairs.

It is important to note that the current rules do enable this kind of behaviour either explicitly or by providing enough wiggle room for the public sector to keep said contracts private.

The price of non-transparency is trust. And that is not a currency we have in abundance.