The health secretary cited the demands of coronavirus response after being rapped for failing to meet publication deadlines for major contracts. But perusing procurement databases suggests this is no anomaly, PublicTechnology finds
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“Some of the paperwork got a little bit delayed,” said health secretary Matt Hancock, referring to his department’s failure to publish within the 30-day mandated timeframe details of contracts with commercial suppliers.
During the coronavirus crisis, government has, more than ever, called in the outside expertise of external consultancies, outsourcers, tech firms and manufacturers. Some of these outfits have been directly awarded major deals without the usual competitive processes, which public sector bodies have been given licence to circumvent if doing so supports emergency pandemic response.
The spending of large sums of public money with private sector entities is, in itself, nothing new. But the scrutiny of procurement spending has intensified owing to the importance and profile of engagements such as the Test and Trace scheme, as well as the perception that deals are being fast-tracked or awarded based on the personal relationships of ministers or their advisers.
The requirement for public bodies to publish, within 30 days of their award, details of all contracts worth more than £120,000 is designed to act as a bulwark against corruption, cronyism or, simply, bad practice. The GOV.UK Contracts Finder site, the key place where such notices are published, is a repository – in theory – of every six-figure-plus engagement between a public-sector organisation and an external provider. Once a contract is published there, it is a matter of public record, and can be examined by any journalist, lawyer, or citizen.
The High Court judge, Mr Justice Chamberlain, that this week found that Hancock had acted unlawfully did so not on the basis that the Department of Health of Social Care had awarded contracts in an underhand or nepotistic way, but purely because it had “in a substantial number of cases” failed to fulfil its obligation to publish award notices within 30 days.
So, what else is new?
The health secretary’s implication seemed to be that publication of the data had taken a week or two longer than usual because of the immense demands being placed on officials by coronavirus. And Chamberlain accepted that the DHSC has faced “unprecedented” circumstances; these constitute an “excuse” for the tardy filing of transparency information – albeit “not a justification”, the judge said.
31%
Proportion of the 20 most recently published tech deals across HMRC, DWP, DHSC, MoJ and Home Office that failed to meet transparency guidelines
30 days
Timeframe within which deals should be published
£120,000
Value threshold for publication of goods and services contracts
Those who have even a passing familiarity with Contracts Finder – and the EU’s Tenders Electronic Daily (TED) platform – will know that there are also many, many precedented circumstances in which government agencies publish procurement data days, weeks or months after it ought, theoretically, to have been released.
Until the end of 2020, the obligation for public bodies was, within 30 days of the signature of a contract, to provide information on awarded contracts to the Official Journal of the European Union (OJEU). This requirement covered deals related to goods and services on which more than £120,000 had been spent. The details of these engagements were then published on TED.
Once this obligation was met, the same information often appeared shortly afterwards on GOV.UK’s Contracts Finder site – a UK public sector-wide repository of transparency information that, from experience, is much easier to navigate than its EU equivalent, and allows for the attachment of further documentation outlining terms and conditions. This often covers important contractual terms, such as what citizen data the supplier in question will be allowed to process, and conditions for how it will be processed and stored.
Before Brexit, the 30-day term applied to publication via OJEU means. But the Public Contracts Regulation 2015 – and the Cabinet Office’s own transparency requirements for departments – stipulates that details should also be published on Contracts Finder “no later than 90 calendar days after the contract award date”.
Following Brexit, the expectation is that deals will appear on national systems – primarily Contracts Finder – within 30 days of their award.
The current picture
Some examination of departmental performance in recent weeks months – and for some time before that – shows that this target often appears to be an ambitious one.
Several times a week PublicTechnology scans Contracts Finder to keep tabs on the latest contracts awarded for IT and related services. There are four main categories that feature in searches, covering: IT hardware; software; services; and telecoms kit.
Judging by the 20 most-recently published £120,000-plus deals in these four areas awarded by the DHSC, the judge was right to conclude that information is published belatedly “in a substantial number of cases”.
Only seven of HMRC’s 20 most recently published tech deals appeared on Contracts Finder within 30 days of the start of the engagement. And almost half – nine – of these contracts took more than 90 days to be published.
Only four of the contracts, which cover a period going back about one month, took effect 30 days or fewer before they were published. And most were, presumably, signed some days or weeks before the contract start date.
And, even allowing for the recent Brexit-related rule changes, a significant number – one in five – had come into effect more than 90 days before a record of them found its way into the public domain.
A similar, if not somewhat worse trend, emerges when performing the same search for deals awarded by four other major Whitehall departments: HM Revenue and Customs; the Department for Work and Pensions; the Ministry of Justice; and the Home Office.
Only seven of HMRC’s 20 most recently published tech deals appeared on Contracts Finder within 30 days of the start of the engagement. And almost half – nine – of these contracts took more than 90 days to be published.
The DWP failed to publish nine contracts within 30 days, and four within 90 days, while the figures at the Home Office are 14 and nine.
Only eight of the 20 most recently published tech and digital deals published by the MoJ made it online with 30 days, and one in four took more than 90 days.
In total across the five departments, almost of third of major tech contracts (31 out of 100) were not published within 90 days of taking effect – let alone being awarded. Some, such as a £41m cloud-hosting deal recently awarded to AWS by HMRC, involved huge sums of public money.
A quiet year?
Examining departmental trends for a representative period of 2018 – the one year in living memory when government did not have to deal with an election, referendum, or pandemic – appears to give the lie to the suggestion that the recent poor performance can be chalked up to the pressures or coronavirus response. For the purposes of comparison, for each of the five departments we found a period of one or more quarter – without knowing what the findings would show – during which around 20 contracts were published.
Even allowing for the more generous 90-day timeframe, examination of data suggests that a comfortable majority of contracts did not comply with transparency requirements – if they made it online at all.
60%
Amount of IT deals in representative sample of 2018 that failed to meet transparency requirements
26
Number of DHSC IT contracts published on Contracts Finder during the whole of 2018, compared with 33 so far this year
2015
Year that the Public Contracts Regulations came into effect
Contracts Finder data reveals that the DHSC published details of 26 technology engagements worth more than £120,000 across the whole of 2018.
Given that it has already published this amount with the first two months of 2021, this figure seems low – but there is no real way of knowing whether or how many other deals might have been awarded but never published.
Of the 26 that were published on the government’s procurement transparency platform, only nine appeared within 90 days of the commencement of the contract.
Of the 27 published by HMRC in just the first quarter of 2018, just seven were deals of fewer than 90 days old. Among those that failed to meet publication guidelines were a £2m software licensing contract that took over a year to be published, and several deals worth in excess of £20m that were more than six months old.
The Ministry of Justice fared even worse in the second quarter of 2018, during which it published on Contracts Finder 24 IT and digital engagements worth in excess of £120,000.
Just four of these deals were published within 90 days of commencement, including a £13.2m licensing contract that took eight months to make it to GOV.UK, and £5m spent on development services that was not released for almost a year.
Of the 20 deals it published in the first half of 2018, the Home Office fared somewhat better, managing to do so within 90 days in 12 cases. But others, such as an £18.5m contract related to its new immigration caseworking system, took as long as eight months or more.
Just four of 24 deals were published within 90 days of commencement, including a £13.2m licensing contract that took eight months to make it to GOV.UK, and £5m spent on development services that was not released for almost a year.
The DWP did better still in the second half of the year, but one in four of the major IT deals it awarded during the six-month period were older than 90 days.
In total, just 47 of the 117 contracts published across the five departments in 2018 were published on Contracts Finder with 90 days. This equates to just 40%.
The fact that a cabinet minister was found to have broken may have – rightly – been big news this week.
But, when it comes to government contracts failing to meet their transparency obligations, data – and years of fruitless searches – suggest there is little new to see here.
