Open Contracting (AU0013)

Objective and description: Australia will ensure transparency in government procurement and continue to support the Open Contracting Global Principles. As part of this, we will publicly review the Australian Government’s compliance with the Open Contracting Data Standard. Status Quo: The Open Contracting Data Standard sets out key documents and data that should be published at each stage of government procurement and is seen as the international benchmark. The Standard enables disclosure of data and documents at all stages of the contracting process by defining a common data model. It was created to support organisations to increase contracting transparency, and allow deeper analysis of contracting data by a wide range of users. In line with the Commonwealth Procurement Rules, Australian Government entities are required to report all procurement contracts with a value of $10,000 or more on AusTender. However, there has not been a formal assessment of the extent to which current practice meets the requirements of the Open Contracting Data Standard. At the UK Anti-Corruption Summit in May 2016, the Australian Government stated its support of the Open Contracting Data Standard and noted the role that the Standard could play in encouraging machine-readable open data formats across all areas of government. Ambition: To enhance transparency and accountability of public money in delivering public contracts. Relevance: This commitment will advance the OGP values of access to information and public accountability by demonstrating transparency and accountability in relation to the procurement of goods and services on behalf of the Government. COMMITMENT DETAILS: OGP Grand Challenge; Increasing Public Integrity More Effectively Managing Public Resources; Timeframes February 2017 – August 2017; Lead agency: Department of Finance (procurementagencyadvice@finance.gov.au); Other actors involved; Government: All Commonwealth entities; Non-government: Non-government organisations (including Transparency International Australia and Publish What You Pay Australia)

13. Open Contracting

Commitment Text:

Australia will ensure transparency in government procurement and continue to support the Open Contracting Global Principles.

As part of this, we will publicly review the Australian Government’s compliance with the Open Contracting Data Standard.

[…]

Milestones:

1. Undertake review of compliance with the Open Contracting Data Standard.
2. Publish review.
3. Receive public comment on the review.
4. Implement agreed measures to improve compliance with the Open Contracting Data Standard.

Responsible institution: Department of Finance

Supporting institution(s): See the national action plan for other actors involved with this commitment.

Start date: February 2017 End date: August 2017

Editorial Note: This is a partial version of the commitment text. For the full commitment text, see the Australia National Action Plan available at https://www.opengovpartnership.org/wp-content/uploads/2001/01/Australia_NAP_201...

Context and Objectives

This commitment aims to review compliance of the way the Commonwealth reports on procurement against the Open Contracting Data Standard and consider reform.

The Open Contracting Data Standard (‘Standard’) provides for the publication of information about the government contracting process.[1] It requires open publication of data in machine readable form, with a release schema specifying the fields and data structures to be used when publishing data. It is intended to increase transparency and support analysis of the efficiency, effectiveness, fairness, and integrity of public contracting systems.[2] Potential benefits from adopting the Standard include:

• Achieving value for money for government;
• Strengthening the transparency, accountability and integrity of public contracting to prevent fraud and corruption;
• Enabling the private sector to fairly compete for public contracts, especially smaller firms;
• Monitoring the effectiveness of service delivery; and
• Promoting smarter analysis and better solutions for public problems, including the use of tools developed in other countries for use with standard compliant data.[3]
  

Australia has not committed to implementing the Standard,[4] but this commitment reflects Australia’s general support for the principles of open contracting by undertaking a review of compliance with the Standard in publication of procurement information. Currently, under the Commonwealth Procurement Rules,[5] most Commonwealth government agencies have obligations of transparency and accountability in relation to how they acquire goods and services. Agencies must publish details of any planned procurements, open tenders, contracts awarded above the relevant reporting thresholds[6] and any amendments on the AusTender procurement information system, a centralised web-based facility.[7] AusTender also supports secure electronic tendering to enhance integrity of the tendering process. There are approximately 70 different systems used among government entities to contribute information into AusTender.

In interviews for this report, various individuals highlighted the complexity of the Commonwealth procurement rules and the difficulty of identifying areas of reform.[8] Incompatibility with the Standard has also possibly restricted any comparison or analysis of the current tendering practices of government. A review of the current requirements against the open contracting standards would identify any current potential deficiencies with the current rules as the first step in an evaluation of the costs and benefits of reform.

The Commitment is of low specificity, with no details of what form of review will be carried out, how extensive the consultation is likely to be, and a commitment to only agreed measures for some improvement in compliance.

The anticipated potential impact of this commitment is minor. The review will provide information to the public on the extent of current compliance with the Standard. Interviews with the Department of Finance indicated that the review would not include an evaluation of the costs and benefits of moving towards implementation of the Standard as, in their view, such an evaluation was outside the scope of the commitment.[9] Therefore, whether there will be substantial changes made to the information that has to be published on AusTender to better comply with the Standard is uncertain, making it difficult to assess any impact of the commitment beyond providing an opportunity to comment on the review. In interviews and open meetings, various civil society groups and individuals were critical of the lack of any commitment to at least collaborate with civil society and other interested stakeholders in assessing the costs and benefits of working towards implementation of the Standard.[10] While it was not possible to identify specific issues with the current procurement processes which would be resolved through increased compliance with the Standard, extending the procurement information provided, and allowing for analysis and comparisons through methodologies adapted to the Standard, could identify areas for reform.

Completion

Overall, the commitment saw limited completion.

Milestone 13.1 was completed. A review of AusTender’s compliance with the Standard was carried out by Maddocks Lawyers, a law firm with experience in Commonwealth government procurement.[11]

Milestone 13.2 was not started within the implementation period of this report. The review was released to the public on 19 July 2017 and therefore not made publicly available by the end of the period of implementation under consideration (30 June 2017). Further details of the review will be provided in the end-of-term report.

As responses were invited with the release of the report,[12] milestone 13.3 was also not started within the implementation period. As milestone 13.4 derived from previous milestones it was also not started.

Early Results (if any)

The were no evidence of early results prior to July 2017.

Next Steps

Given the importance of transparency in government procurement and the potential benefits that might derive from compliance with the Standard, a comprehensive review of the costs and benefits associated with implementation should be carried out. This should include a collaborative approach to consultation with civil society stakeholders and an evaluation of the uses of currently available information.

Commitment 13. Open Contracting

Commitment Text:

Australia will ensure transparency in government procurement and continue to support the Open Contracting Global Principles. As part of this, we will publicly review the Australian Government’s compliance with the Open Contracting Data Standard.

[…]

Milestones:

1. Undertake review of compliance with the Open Contracting Data Standard.
2. Publish review.
3. Receive public comment on the review.
4. Implement agreed measures to improve compliance with the Open Contracting Data Standard.

Responsible institution: Department of Finance

Supporting institution(s): See the national action plan for other actors involved with this commitment.

Start date: February 2017                             End date: August 2017

Editorial Note: This is a partial version of the commitment text. For the full commitment text, see the Australia National Action Plan available at https://www.opengovpartnership.org/sites/default/files/Australia_NAP_2016-2018_0.pdf

Commitment Aim:

This commitment broadly aimed to review the compliance of Commonwealth procurement reporting against the Open Contracting Data Standard and implement any compliance improvements if appropriate. Currently, under Commonwealth Procurement Rules, [179] Commonwealth government agencies must publish details of planned procurements, open tenders, contracts awarded above relevant reporting thresholds, and any amendments on the AusTender procurement information system. [180]

Specifically, this commitment sought to review whether the information published on AusTender is in the correct format and provides the information necessary under the Open Contracting Data Standard, as part of Australia’s general support for principles of open contracting.

Status

Midterm: Limited

This commitment was only completed to a limited degree by the midterm of the national action plan. A review of compliance with the Open Contracting Data Standard had been undertaken by an independent contractor, [181] (milestone 1) but not made publicly available. The other milestones had not yet commenced.

End of term: Complete

The review of AusTender’s compliance with the Open Contracting Data Standard was carried out by Maddocks Lawyers, a law firm with experience in Commonwealth government procurement. [182] The review was released to the public on 19 July 2017 (milestone 2), with submissions in response invited until 10 August 2017. [183] The release of the review was notified to subscribers of the Department of Finance’s blog and other interested parties. [184]

The review concluded that approximately one third of the data field requirements under the Standard were met by the AusTender system. In releasing the review, the Department of Finance (DoF) commented:

The remaining non-compliances relate to significant differences between the contracting data collected by the Australian Government and the OCDS, such as the collection and publication of unsuccessful tenderers, and the linking of data systems such as budget/planning data from the Budget Papers to released Australian Government business opportunities.

These sorts of changes would be a significant shift in the way contracting data is published, and accordingly would require a significant amount of investment and require consideration of the benefits of such data availability and any commercial or risk sensitivities associated with the publication of such information. [185]

There were five submissions in response to the review (milestone 3), though the DoF has not made these publicly available on its website. In a blog post on the website, however, the DoF noted that the ‘key points’ from the submissions were:

• that there would be benefits from adopting a higher standard of compliance with the OCDS;
• that it was premature to suggest it was cost-prohibitive to expand existing systems to increase compliance; and
• that it may be possible to adopt an OCDS-compliant data publication process in the interim. [186]

Civil society groups interviewed for this report echoed these concerns. [187]

On 4 May 2018, the Department stated that the government has agreed to investigate opportunities to publish contracting data collected through existing data collection processes in a format compliant with the Open Contracting Data Standard (milestone 4). The Department will also keep the standard in mind when making iterative improvements to the Commonwealth Procurement Framework and the AusTender platform—specifically the data collection and publication processes and requirements. [188]

Did It Open Government?

Access to Information: Marginal

Civic Participation: Marginal

The review provided information on the level of compliance with the Open Contracting Data Standard and hence the compatibility of the information released with other datasets compliant with that standard. The review analysed publicly available information and shared the level of compliance with the standard, resulting in a marginal increase in access to information.

The review also enabled a consultation with interested stakeholders. As mentioned above, civil society groups interviewed for this report were critical of the establishment and scope of the review. [189] Several raised concern over the extent of engagement with the Open Contracting Partnership in the preparation of the review. They were also concerned about the review’s emphasis on the risks and sensitivities and potentially significant costs involved in improving compliance. For example, despite a statement in the report summary that it is not its purpose to determine whether any changes required to align AusTender with the Standard represented value for money, [190] the review states at various points that:

Given the costs of minor changes to AusTender, significant changes to current Commonwealth systems to meet the requirements of the OCDS may not be considered value for money. [191]

The DoF also noted, in its blog post on the consultation, that the significant costs noted in the report include not just the cost of changes to the AusTender system but also the data collection processes of the 67 entities who automatically upload onto AusTender. [192] The limited nature of this review, through the publication of the review and calling for submissions, meant that any additional opportunities for participation provided by the commitment was also marginal.

Carried Forward?

The second national action plan includes a commitment to expand open contracting and due diligence in procurement. [193] The commitment includes publishing an additional dataset on data.gov.au which is in the format required by the Open Contracting Data Standard, and promoting that dataset to stakeholders in government, business, and civil society. The government will then assess the use and value of that data for groups including government, business, and society, as well as reviewing existing procurement due diligence processes.