If there is no Brexit deal significant questions need answering about how all UK public contracts covering services, works and supplies, will be published, accessed, completed and remain transparent for public clients and commerce. Government announced on 13 September 2018 that if there is no deal a new UK e-notification replacement system will be made available on 29 March 2019, and notices will be published there, rather than in ‘The Official Journal of the European Union’ (OJEU) published online via Tenders Electronic Daily (TED) .
“Changes to the procurement rules will be made via amendments to existing legislation, to ensure continued operability.
All contract opportunities that would currently be published on OJEU/TED would be published on the new UK e-notification service.
This would be in line with the current requirements to send notices to the EU Publications Office for publication on OJEU/TED.
Publication would take place electronically and the service will be free for all users”.[i]
EU – Current Background.
UK commerce has relied upon the EU’s extensive world leading digital procurement infrastructure known as OJEU/TED and e-certis, the EU digital systems for publication of contract notice issues, award notices and forms, which UK contributes to through its EU membership. Because the EU is a WTO member notices of international opportunities under the World Trade Organisation Government Procurement Agreements (WTO GPA) are also visible and accessible in a single location on OJEU. The portal furthermore includes the relatively new European Single Procurement Document (ESPD) that can digitally ease access to contract opportunities in EU member states by use of a standard unity digital approach to PQQ’s core criteria, via the access portal and interoperability system.
Across all EU member states OJEU data collation also provides invaluable facilities on above thresholds contracts – which sustains transparency and research into public contracts and allows for critically benchmarking UK public procurement against our closest competitor nations. This allows extensive accurate analysis and reporting on the procurement market – so that trends can be explored, and policy be bettered. Although a complex system it never the less provides for un-paralleled transparency.
Independent procurement platforms then scrap OJEU to filter bespoke services for different bidders and sectors according to various filters. Project Compass CIC for example provides this as a sector specific free service on our front page.
UK – Background.
Separate procurement portals for the four UK nations; Contracts Finder (England), Sell2Wales, Public Contracts Scotland, and eTendersNI (Northern Ireland) currently provide the national portals as alternatives, theoretically, to OJEU, but with different facilities. They were established to provide an online tool displaying the details of public contract opportunities for contracts above £10,000 (for central Gov. or £25k for others) as well as those found on OJEU above the EU threshold values. This was to create a more transparent system that purportedly removes obstacles and improves access to contract opportunities -particularly for small businesses.
In England Contracts Finder (CF) is distinct for several reasons.
The Scottish and Welsh national procurement portals currently work as official e-senders providing a one stop portal, allowing contracting authorities to provide electronic access to documents, electronic submission of responses and automatic forwarding of notices for publication in OJEU, where required by the regulations. CF is not an official OJEU eSender, does not currently offer all these facilities and cannot directly forward procurement notices, although under Public Contracts Regulation 106 & 110 notices are required to be published on CF – so this submission process must be done separately or by another provider, making the CF system more complex.
Project Compass monitoring of CF has shown that notices are not being published reliably, there are huge disparities between contract notices and award notices, uptake for architectural services notices is particularly poor, the regulations are not being upheld and there is no remedy or interest in policing the system. Research has found that 73% of English tenders between June 2015-17 were not found on CF.[ii] CF remains on its Beta version since its launch in 2011, and its systems, functionality, data retention and transparency are considered inadequate (eg. for meaningful research into numerous aspects of procurement).
Governments recent announcement of the no Brexit deal contingency plan – states that an entirely new independent UK national procurement portal and associated infrastructure will now be established. Work towards this has been commenced and will be available to contracting authorities and those bidding on 29th March 2019. They state that where UK national portals are already e-senders (eg Public Contracts Scotland) notices can simply be forwarded onto the new platform, but because CF has been treated as a Cinderella for so long – this is not possible in England.
Key Questions which arise are:
- The ease with which the UK system will operate.
- Whether a meaningful, effective and efficient system can be constructed and ready by March 2019, and what opportunities for feedback will there be.
- Whether English public clients and architects will be required to navigate multiple procurement systems, to load UK notices or view them, or even more if they seek work internationally. The existing system is already unduly complex so any increase in requirements above the existing will reduce access and transparency and not increase it. This will likely impact smaller SME more.
- The quality of data collated and represented on any new platform, so it can provide meaningful research analysis and policing to sustain compliance with the regulations and their betterment forward, is critical for transparency.
- What may happen to PIN or contract notices and ongoing processes which have been advertised in OJEU before exit or, before their award.
- Standardisation of PQQ core criteria via the ESPD system and the mutual recognition this offers easing access to European opportunities is not referenced by Government at all.
- As this new digital system is being “developed by an experienced team with a track record of delivering similar systems”, it is to be hoped that for any to whom it may be outsourced potential conflicts of interest have been thoroughly considered.
But what will also happen to contracts being let, or in progress, if there is no Brexit deal is also material.
- This is addressed in the “EU Withdrawal Act 2018 by the aim to ensure that in all scenarios the same rules and laws will apply the day before and after exit, with changes agreed over time by the UK Parliament”.
- However the same may not apply to firms already under contract in the EU, where their rights to the freedom of establishment and the free movement of people will be lost. In this case Government only seek “to do what it can to make the transition as smooth as possible and allow time to make significant changes”.
What should be sought?
Initial thoughts are that there should be:-
- A concerted push from all professional institutes & stakeholders to feedback into this proposed new system – to ensure it is well constructed, in everyone’s best interests & delivers the necessary value into the future. If not all done prior to launch – then a full commitment, embedded in the legislative process, to allow for reviewing it after and to provide robust progressive improvement, tuning & bedding in.
- Provision for the new system to be a single point of free & easy access to notices, awards, and tender issues and online procedural processing, all backed with comprehensively adequate data and feeds for a transparent portal – so we aren’t landed with another dysfunctional fragmentary & inadequate system for years.
- A commitment to a cyclical system review and a means described for its policing, challenge & accountability – like OFCOM vis the somewhat toothless Mystery Shopper – to ensure it improves over time.
- Grounds for overhaul should be in place. If left to a Cabinet Office brief, reflecting historic patterns & the restricted knowledge of the outsourcers constructing the system – the mire could get far worse.
It is a bit disappointment that these contingency plans in event of no Brexit deal are now costing UK a fair whack – because its not being spent on getting Contracts Finder up to scratch, making its data more transparent, providing facility for it to be an e-sender, (to make it a one stop platform for issuing and uploading notices and bids) and improving UK’s procurement practices more widely – as they are already arcane and regressive relative to so many of our EU competitors – or for that matter spent on meeting desperate housing needs. This seems to be a misdirected and wasted opportunity!
In all events the lack of any transition period or beta testing appears a high-risk strategy, on which so many work, service and supply transactions are dependent. Given the existing paucity of the Contracts Finder digital system – hope appears the only offer. But it is difficult to see how this scenario is not a recipe for reducing opportunity, increasing confusion, complexity, and a loss of transparency – and increasing risk – even if it’s ready on time – unless early action is taken & embedded in legislation forward.
Project Compass will endeavour to provide further guidance as matters proceed and more information becomes available.
[i] Accessing public sector contracts if there’s no Brexit deal. https://www.gov.uk/government/publications/accessing-public-sector-contracts-if-theres-no-brexit-deal