Centralized Open Contracting Data (UK0098)

Objective To improve compliance, coverage, and quality of contract publication, from planning to final spend. What is the problem that the commitment will address? The COVID-19 emergency and the aspiration to use contract spend for social policy to, for example, ‘level-up’ or ‘build back better’ have highlighted the importance of public procurement. Public attention to this important government function has increased. As a broad strategic function, public procurement links to issues such as transparency, integrity, fair treatment of suppliers and non-discrimination. Despite previous commitments and some progress, the UK public procurement landscape was fragmented even before the COVID-19 emergency. There were missed opportunities to: ● manage spend ● focus on performance and contract management ● improve outcomes For example, although there is increasing compliance with the requirement to publish contract opportunities and awards on Contracts finder, there are still data gaps and limitations that make it difficult for the public sector, the private sector, civil society organisations and citizens to understand the full pattern of government procurement spend. Bidders have to register on multiple platforms to bid and put in very similar information on each platform. Transparency in public procurement is still inconsistent. There are concerns about disclosures under the Freedom of Information Act, and some commercially sensitive information is redacted. In May 2021, the Queen's Speech announced that new public procurement legislation would be introduced when the parliamentary programme allows. The Declaration on Government Reform - June 2021, said that government proposes to: ● “do better at making our data available to all so that we can be more effectively held to account” ● “do better at monitoring and managing how we spend, encouraging new organisations to provide public services, holding those with whom we contract more rigorously to account, and minimising the risk of fraud, error and waste” ● “ensure all data is as open as possible to public and third parties” The UK government has also renewed its international commitments to transparency in the Carbis Bay G7 Summit Communiqué to strive for “transparent, open, economically efficient, fair and competitive standards for ... procurement”. What the government will do The government proposes to take the following actions: 1. Introduce primary and secondary legislation, supported by a learning and development programme to implement increased transparency in public procurement. 2. Embed transparency by default throughout the commercial lifecycle, from planning through to completion, to include transparency notices, including under framework agreements and dynamic purchasing systems, by introducing transparency notices at these stages: ● planning notices ● tender notices ● award notices ● contract notices ● implementation notices Implement the Open Contracting Data Standard The government will require all contracting authorities to implement the [Open Contracting Data Standard](https://standard.open-contracting.org/) (OCDS), to include data for buyers, suppliers, contracts, spend and performance being held and published in OCDS-compatible, open, non-proprietary reusable formats. Establish a central platform for supplier registration The government will establish a single, central digital platform for supplier registration and other information, to include: ● a requirement that all contracting authorities publish procurement and contracting data throughout the commercial lifecycle to the central platform through links to their own systems or directly, as appropriate. ● public access to all published data online and through APIs. ● plans for extra functionality including but not limited to: registers of suppliers; a register of commercial tools (framework agreements, dynamic purchasing agreements and so on); contract performance data including spend and KPIs, a central debarment list, procurement pipelines, and register of complaints and a register of legal challenges How will the commitment contribute to solving the problem? The public will be more confident in public sector procurement if we embed openness, innovation and transparency into procurement systems. This needs a greater focus on data quality, open reporting, and compliance with rules and guidance. Improving the use and validation of non-proprietary, unique, reusable organisation identifiers will help to provide a view of government business with specific organisations. It will also help identify where these organisations are based and who owns them. Improving compliance with policy requirements and guidance to publish contract documents will help with analysis of how contract terms affect the price and delivery of public services. Working with the community to build analytics tools of Contracts Finder data will help government, private firms and citizens use available data to be more informed about public procurement. Work on contract registers and spend linkage will support a move towards a much more integrated public financial infrastructure, where citizens and government can fully "follow the money". Milestones to fulfil the commitment New or ongoing Start Date End Date Achieve 95% of 'above threshold' tenders on Contracts Finder Ongoing April 2022 March 2023 Publish 90% of ‘above threshold' central government awards on Contracts Finderwithin 90 calendar days Ongoing April 2023 March 2024 Report every year on publication of contract documents, and extent of redactions in central government contracts Ongoing July 2022 July 2023 Cabinet Office to make available enhanced published data for download in OCDS New April 2023 Ongoing Issue twice-yearly report on progress in meeting NAP5 Open Contracting milestones New April 2022 Ongoing

Action Plan Review

Commitment 1. Open contracting

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Substantial

For a complete description of the commitment, see Commitment 1 in the action plan here.

Context and objectives

The UK government spends about 300 billion GBP annually on procuring goods and services from external suppliers, accounting for roughly a third of all public expenditure. ^[1] The UK has used past action plans to steadily increase the transparency of how these vast public resources are spent. In the fourth action plan (2019-2021), the government committed to improve the quality of its public contracting data and mainstream the Open Contracting Data Standard (OCDS) on the national portal ‘Contracts Finder’. [2] This commitment led to a considerable increase in the availability of above-threshold contracts on Contracts Finder and better adherence of Contracts Finder to OCDS. However, at the end of the fourth action plan, Contract Finder was still not fully OCDS compliant, and the tenders associated with a given contract were not always published, making it difficult to match contracts with the relevant tender notice. ^[3]

The commitment in the fifth action plan will expand this work. One of the stated objectives is to require all contracting authorities to implement the OCDS for data on buyers, suppliers, contracts, spending and performance. Another objective is to also create a central platform for supplier registration. The platform will provide public access to all published data online and through APIs, [4] as well as improvements to the central debarment list, [5] procurement pipelines, a register of complaints and a register of legal challenges. Lastly, the commitment entails introducing primary and secondary legislation, “supported by a learning and development programme to implement increased transparency in public procurement”. However, the legislation is not explained in more detail in the objectives or in the milestones. The milestones include publishing 95 per cent of above-threshold tenders on Contracts Finder, publishing 90 per cent of above-threshold awards within 90 calendar days. They also involve reporting annually on publication of documents and redactions in central government contracts and issuing twice-yearly reports on progress in meeting these activities.

This commitment was the result of at least four formal working group meetings during the co-creation. Participation in these meetings was rich and varied, with sessions hosting representatives from government, civil society and procurement experts. ^[6] Participation also extended to the private sector such as World Contracting[7] and Commerce and Spend Network, [8] who helped identify potential bottlenecks in the implementation of the proposed work. Moreover, stakeholders met in between these formal meetings, for example at the University of Oxford’s Procurement of Government Outcomes (POGO) club. CSOs and the point of contact (PoC) discussed aligning the open contracting commitment with broader UK reforms on procurement as outlined below. [9] Stakeholders drew on the results of the previous action plan as well as broader developments in this area, such as the announced overhaul of the UK’s procurement regulations (including a consultation process called Transforming Public Procurement), ^[10] and the launch of a National Procurement Policy Statement. ^[11]

Interviewed stakeholders mentioned that increased recognition of using open contracting to avoid opaque government contracting, exhibited for example during the COVID-19 pandemic, helped assure meaningful discussions around the commitment. However, it was not always clear for civil society what would happen next. The pandemic limited in-person meetings and government officials were also deployed to deal with the pandemic response. At the same time, some participants felt that there was insufficient political backing to secure ministerial approval for the proposed work. Some civil society priorities in initial drafts of the commitment were ultimately not included, such as extending the scope of the Freedom of Information Act (FOIA) to include private contractors that provide public services. [12] This was also a recommendation from the IRM 2019-2021 Design Report. [13] The government was not able to provide feedback to stakeholders as to why the proposed work was taken out of the final commitment text. ^[14]

Potential for results: Substantial

Despite lacking some stakeholder proposals from the co-creation process, this commitment represents a significant improvement when compared to the previous action plan. If the work is carried out effectively and the necessary human and financial resources are made available, the potential for results is substantial. In particular, the plans to require all contracting authorities to implement the OCDS have strong potential for results, given the gaps in the quality and completeness of data currently on Contract Finder. Full compliance with OCDS would lead to better ability for stakeholders to analyse trends in UK government procurement. Moreover, the establishment of a central platform for supplier registration that (may) include debarment lists and a register of legal challenges would provide an important space for public oversight on companies suspended for performing poorly or for corruption. This could provide companies with additional incentive to improve and allow for broader public scrutiny into cases where wrongdoing or alleged corruption occurred. It could also allow public bodies to check this information more easily before buying, potentially improving efficiency in the system.

At the same time, the commitment promises that 95 per cent of above-threshold tenders will be made available on Contracts Finder. Combined with the promised availability of 90 per cent of above-threshold central government awards, this should allow for better tracking of public expenditure and increase the ability for external users to search and compare spending data, particularly when OCDS compliance is in place for most contracts. It would also mean a significant step up in comparison to the current data availability, particularly regarding contract awards data on Contracts Finder, where it is currently estimated to be available for around 60 per cent. ^[15]

Opportunities, challenges and recommendations during implementation

Ensuring that public contract performances can be tracked and assessed throughout their commercial lifecycle is critical for verifying overall value for money (VfM). Meanwhile, the UK’s upcoming Procurement Bill creates a strong momentum for stakeholders to work on this topic across different levels of government. ^[16] However, the commitment does not specify some important points, such as if it will involve working with unique organisation identifier numbers (critical to track all contracts with a specific company) or how it will improve compliance with disclosure policies without excessive redacting. Moreover, as noted by the UK Anti-Corruption Coalition, the Procurement Bill does not explicitly commit to best practice disclosure standards and the use of open data formats (such as OCDS) and leaving these details to secondary legislation and implementing regulations could make the disclosure regime subject to administrative discretion and at risk of rollback. [17] This contrasts with the Green Paper, which promised a single rulebook with transparency across the full life cycle of public contracts.

With an eye towards possible amendments to the commitment and ensuring strong implementation, the IRM recommends the following:

● Improve the commitment’s design by developing measurable milestones that meet all stated objectives and specifying a government agency to lead the work. This commitment currently includes three objectives, namely introducing primary and secondary legislation, embedding transparency by default throughout the commercial lifecycle, and establishing a central platform for supplier registration. However, the milestones do not address these objectives directly. Likewise, the OCDS requirement is mentioned in the narrative of the commitment but not under its milestones. These discrepancies between the objectives and milestones could make it difficult to track the implementation of the commitment. If this commitment is amended, stakeholders could specify what activities will be carried out to fulfil all stated objectives. In addition, stakeholders should consider appointing a designated government agency to lead this work in tandem with civil society. This way, poor implementation as a result of unclear responsibility can be reduced, and decision-making and work in progress can be streamlined to assure there is no duplication of efforts.

● Focus on using procurement data to address structural inequalities, particularly around gender, and supporting social development outside of major urban areas. Earlier deliberations on open contracting in the UK have also seen calls to assure gender-responsive procurement policies. ^[18] Others have discussed how UK procurement can play an important role in reducing structural inequalities and discrimination, including by promoting gender equality. ^[19] Making sure that relevant gender data is captured could help to inform policymaking and to evaluate whether the new regulation is meeting this objective of the Procurement Bill. Another objective of the Bill is to increase opportunities for small businesses and social enterprises to benefit from government procurement opportunities. ^[20] To meet this objective, the UK could use data from this commitment to help small businesses apply for procurement by local governments. This could increase public spending in marginalised areas of the UK and help address structural and economic inequalities in the country. The UK government could connect this work to the ‘Levelling Up’ agenda of the Department for Levelling Up, Housing and Communities. [21]

● During implementation, endeavour to prevent the over-use of confidentiality clauses in procurement contracts. Stakeholders could ensure that, when disclosing contract data, key parameters of awarded contracts such as price, volume(s), and duration are not redacted. The commitment plans to report yearly on the extent of redactions in government contracts, which was also planned but not fully realised in the fourth action plan. Stakeholders could seek to limit such redaction to an absolute minimum by co-developing guidance for bidders and contracting authorities on what data should be published (and in what format) and what data could be redacted, for example because it is commercially sensitive. At present, no such guidance appears to be available and, in some cases, the decision on what data will be disclosed and what information will be redacted is subject to contract negotiations. Furthermore, OCP has recommended tightening the rules of redacting commercial information and the exemptions from duties to publish or disclose information in the Procurement Bill. [22]

Develop analytical tools around the data in Contract Finder and put in place additional mechanisms for verifying the accuracy of data. The commitment calls for working with local communities to build analytical tools around the data in Contract Finder but does not specify what will be done to develop these tools. These tools may be important to stimulate the use and re-use of spending data and boost citizen engagement. Amendments to the commitment could clarify what will be carried out. The UK could look to examples of other countries when building user-oriented analytical tools, such as Italy’s OpenCoesione. [23] In addition, civil society have noted that they often find gaps in the quality and completeness of the data on Contract Finder. The Cabinet Office could ensure that mechanisms for checking the accuracy of the data are put in place (beyond OCDS) and discuss with civil society how to monitor the data most effectively. Finally, accountability mechanisms could be set up to enable reporting of suspected abuse or corruption of procurement with transparent investigations.