The monthly round-up from the Anthony Collins Solicitors charities team
One of the stated aims of the Green Paper is “to deliver the best commercial outcomes with the least burden on the public sector". Given this, it is perhaps surprising to read in Chapter 6 of the vast array of notices contracting authorities will need to publish.
This is the next in our series of ebriefings on the Government’s Green Paper: Transforming public procurement, focussing on the proposed transparency requirements.
What notices will be required?
The mandatory notices a contracting authority will need to publish for each procurement are:
- a planning and pipeline notice;
- a pre-market engagement notice;
- four tender notices;
- a web form;
- details of tenderers;
- five award notices (with different information in each);
- a notice with contract details;
- a payment notice;
- a supply chain notice; and
- a contract termination (including expiry/completion) notice.
This is a staggering 17 notices per procurement, which will no doubt place a huge burden on contracting authorities. The volume of information that will need to be produced, and potentially checked by their legal team, would increase exponentially from what is required now. Procurement teams could spend their whole working lives just publishing notices.
In our response to the Green Paper, we questioned why the Government was proposing to go down this route, given that it is not required by the Government Procurement Agreement (GPA), Trade and Cooperation Agreement (TCA) or any of the other trade treaties the Government has entered into.
What do tenderers want?
We are not convinced that tenderers want this level of publication either. It is likely to overload them with unnecessary information, making it harder to work out what is a tender opportunity and what is simply information about forthcoming procurements or procurements where they have already missed the deadline for tendering.
Tenderers need to know what tender opportunities they can bid for in sufficient time to be able to put in their best tender. They do not need lots of information about procurements that are coming up in the future.
Less still do they need reams of information about procurements that have been concluded. At the end of a procurement, what tenderers really need is proper feedback. They want to understand why they were excluded from a tender process or why they were not successful at the award stage.
Open contracting data standard
The Green Paper proposes setting up a central IT platform on which all the notices, together with supplier information, is stored centrally. To facilitate this, all notices and information will need to be submitted in a standard format that complies with the Open Contracting Data Standard.
It will be a very significant, and potentially costly, project for the Government to design and construct the IT infrastructure necessary to upload and manage all this machine-readable data. Given the history of recent central government IT projects, we have doubts as to when this platform would be ready and how easy it would be to use. These proposals should not go forward, even in a simplified form, until this platform is created and working effectively.
Supplier central database
A sensible halfway stage towards this central database is to collect supplier information together on a single platform, as the EU had tried to do with e-Certis. This is included in the Green Paper proposals. However, central supplier information platforms have not been promoted within the UK and have failed to take off in England, other than Constructionline in construction.
If there is to be a central supplier database, we commented that this should be free for suppliers and contractors to join, with the running costs being met by the central government.
What happens next
The consultation has now closed. We included these comments in our response to the consultation paper, which we submitted on 10 March 2021. We are now awaiting with interest the Government’s detailed proposals following the consultation.
For more information
For further information in relation to any of the above, please contact your relevant ACS contact or Andrew Millross.
A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
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