The Coalition Government has made clear its intentions to make government more transparent. What this means in practice started to become apparent in the Prime Minister's letter dated 29 May 2010. The letter set out his aims to make government public spending, procurement and contracting information, more granular crime data and information on senior public sector officials' salaries all available to the public.
This was followed by two guidances for departments from the Cabinet Office in September 2010: one on publication of procurement documentation and the other on publication of ICT contract documents (ICT contracts being in the first 'wave' of contracts to be published). See our September 2010 alert for more information on these guidances.
The guidance on ICT contract document publication was replaced in December 2010 by a subsequent Cabinet Office guidance which will apply to all department contracts (not just ICT ones) with a value of more than £10,000. The December guidance is intended to apply to departments only. However, in the absence of more specific guidance for local authorities on publication of contracts (for public authorities the threshold is a value of £500), it is a useful guide for them too.
The Local Government Association has published a code of practice for publication of local authority data for consultation, but for the moment this is a high level code of practice. It does not go into the same detail as the Cabinet Office guidance on publication of contracts. The new Cabinet Office guidance is very similar to the September 2010 guidance, but there are some key differences:
- Supplier co-operation: Co-operation with suppliers through the procurement process to agree 'transparency clauses' has been re-emphasised. Departments will need to be able to demonstrate that they have actively worked with suppliers to meet transparency commitments. Suppliers are to be encouraged to engage in detailed dialogue on application of any relevant exemptions. This will be absolutely key for suppliers - Freedom of Information Act 2000 (FOIA) guidance from the Information Commissioner and FOIA cases emphasise that it is not for public sector bodies to decide what is or is not confidential or commercially sensitive information of their suppliers. Instead, this information needs to come from the supplier itself, (including in the case of reliance on the commercial prejudice exemption, an analysis of why the supplier's interests in keeping information secret outweighs the public interest to know - i.e. the 'public interest test').
- What if suppliers do not co-operate? In the September guidance, departments were urged to consider whether re-procurement would be needed if agreement could not be reached with suppliers over publication of contracts. This statement has now been removed. Although it will always have been the case that this sort of action would need to be considered on a case-by-case basis, it has been difficult to envisage in what circumstances the time and expense of a re-procurement would represent value for money. This is particularly the case given that public sector contracts will contain FOIA clauses anyway, so it is not entirely ruled out that contracts would be made public in any case (and judging by the Atos, Government Gateway FOIA case (see our previous alert for more details), the trend is towards almost 'full disclosure'.
- FOIA exemptions do apply: The proposed standard contract transparency clauses have been tweaked so that it is clear that any publication of contracts will still be subject to FOIA exemptions.
- Contract finder website: There is more detail in the December guidance about publication of contracts on the Contract Finder website. Departments will also need to remember to update the contract on Contract Finder as and when the contract changes.
- Time for compliance if there is no standstill period: The December guidance clarifies that if there is no standstill period, the time limit for publication of contracts is 20 days for award of contract (if there is a standstill period, the time limit is still 20 days from the end of the standstill period).