"Greater transparency across Government is at the heart of our shared commitment to enable the public to hold politicians and public bodies to account; to reduce the deficit and deliver better value for money in public spending; and to realise significant economic benefits by enabling businesses and non-profit organisations to build innovative applications and websites using public data."
(Prime Minister's letter to the Secretary of State, 29 May 2010)
What government data will be made publicly available and when? Documents and information which are to be published on (or accessed from) a new http://www.data.gov.uk/ website are set out in the table below. The table includes clarifications from the Cabinet Office. For example, that the threshold for publication of central government ICT and other contracts which are to be published will be contracts with a value of £10,000 or above (i.e. the same as for tender documents).
Contracts and tender documentation which public authorities will be required to publish are highlighted in bold in the table.
Which public sector bodies do the new publication requirements apply to?
The PM's letter of 29 May 2010 refers to the new publication requirements applying to 'public bodies'. What we don't know yet is exactly what is meant by 'public body'. Although we do have a partial answer to this question for central government bodies (see below), the precise boundaries for which public sector bodies the publication requirements apply to are not as yet fully clear. For example, the Transparency Guidance Notes state that National Health Service bodies are 'in scope'. It is likely that the intention is to include public benefit corporations (i.e. Foundation Trusts) but until we have further guidance on this, some uncertainty remains.
It also remains to be seen whether the 'public bodies' to which the publication requirements will apply will match up with the definition of 'public authorities' as defined in the Freedom of Information Act (FOIA). This could become key if the publication requirements end up applying to more 'public bodies' than the FOIA applies to, particularly in the context of reliance of exemptions under the FOIA to resist publication of data - see more below.
So, what do we know?
We have seen in the guidance issued by the Office of Government Commerce (OGC) a partial definition of which bodies will be caught by the new "central government" ICT contract and tender publication requirements - these are listed as being (and for the purposes of this note, we will call them "Central Government bodies"):
- Central Government including departments (including their agents and agencies)
- All Non-Departmental Public Bodies
- National Health Service bodies
- Trading funds
The guidance states that the following are not covered by the guidance:
- Local government
- Intelligence Agencies
- Financial and non-financial public corporations
- Parliamentary bodies
- Devolved administrations
What happens if public sector bodies don't comply?
The publication requirements are currently not legally binding. The Transparency Guidance Notes are just that - guidance notes. They merely provide guidance on commitments made by the PM in his letter of 29 May 2010.
It remains to be seen whether the new publication requirements become enshrined into legislation.
Transparency Guidance Notes - the highlights
The Transparency Guidance Notes have now clarified certain requirements which apply to publication of tender documents and ICT contracts by Central Government bodies. The following overview highlights some of the key clarifications.
Transparency Guidance Notes - Common Denominators
For both central government ICT contacts and for central government tender documents:
- The requirements apply even if the contracts/documents are issued overseas
- Although not required, a Central Government body may at its discretion publish tender documents and ICT contracts which fall below the £10,000 threshold
- The £10,000 limit is net of recoverable VAT where VAT can be separated out
Transparency Guidance Note - ICT contracts
The new publication requirements have applied since July 2010 to new central government ICT contracts with a value of £10,000 or more.
What is an 'ICT' contract?
An ICT contract will include any contract:
- which is for ICT goods or services; and/or
- where ICT is a key element of the project (being more than 40% or the requirement or contract value); and/or
- which is for an ICT enabled business change project.
Sub-contracts will not be caught.
What is a 'new' contract?
"New contracts" refer to contracts not finalised as at 1 July 2010. The Transparency Guidance Note for ICT contracts states that contracts which had reached an advanced stage, but were not yet finalised by that date should be published if possible. However, a review will be needed of whether the ICT contract contains consent from the supplier to publish the contract. If not, and the supplier is not willing to provide consent, the guidance states that consideration should be given to whether there is a need to re-tender.
Significant variations to a contract, re-tenders and re-negotiated contracts will be treated as "new contracts"; as will extensions to contracts which were not anticipated by the contract. However, contracts which already include an ability to extend the contract will not be considered as "new contracts".
Any call-off contracts entered into after 1 July 2010 under pre-1 July 2010 framework agreements will be treated as 'new' contracts. However, since these are unlikely to include the supplier's consent to publication, there is no absolute requirement to publish the resulting call-off contract but the Transparency Guidance note for ICT contracts states that Central Government bodies should seek the supplier's consent to publish.
What does publication "in full" mean?
The term "in full" is stated to cover the full terms and conditions and all the schedules to contracts (including specifications).
Are there any exceptions?
In the OGC Procurement Policy Note issued in July 2010, the OGC states that "From the 1 July, Departments should seek to publish ICT contracts in as full a set of documentation as possible on their own websites. This requirement applies to all ICT contracts with terms which either:
- do not contain confidentiality clauses or
- where such clauses have not been finalised.
Departments should avoid including confidentiality clauses in current and all future ICT contracts."
Contracts containing confidentiality provisions may, therefore, be exempted, but public bodies are warned to avoid including those provisions in contracts. The Transparency Guidance Note on ICT contracts includes sample wording to be used to alter the OGC ICT Model Contract for the purpose of amending confidentiality provisions currently in that contract and to obtain consent to publish contracts.
This does not mean, however, that contracts should be published in their entirety without consideration of confidentiality of any of the information within the contract. The OGC ICT Model Contract wording excludes the contract from confidentiality provisions only to the extent that FOIA exemptions do not apply. Exemption 41 of the FOIA (which is an absolute exemption, i.e. no public interest test needs to be applied), exempts information which if disclosed would give rise to an actionable breach of confidence.
Public bodies will need to keep in mind that even if a contract does not contain a confidentiality clause, some information in the contract could still be confidential (i.e. subject to common law rights of confidentiality even if they are not subject to contractual rights of confidentiality).
How will the publication requirements fit with the FOIA?
The Transparency Guidance Notes clarify that publication of information will still be subject to FOIA and applicable exemptions and that exemptions should be considered on a case-by-case basis (including for 'qualified' exemptions, consideration of the 'public interest test').
The two exemptions which are most likely to be relevant to publication of contracts will be the section 41 absolute exemption (confidential information - for more information see above) and section 43 qualified (i.e. public interest test needs to be applied) exemption (relatingh to trade secrets and information which if disclosed could prejudice commercial interests).
Guidance is available for public bodies from various sources, such as the Information Commissioner's, the OGC and the Ministry of Justice (MOJ) on application of FOIA and exemptions.
The Local Data Panel was set up to champion the release and sharing of local government data. This is to accelerate progress in agreeing common standards for releasing data and for raising levels of accessibility and understanding of public services. David Evans, senior information policy officer for the Information Commissioner's Office, has provided the panel with guidance on how publication of financial data will work in the context of FOIA. This guidance focuses in particular on the section 43 qualified and lists some useful cases in which application of this exemption has been considered.
The section 43 qualified exemption was recently (20 September 2010) considered in a first tier Information Tribunal case involving a request for release of the Cabinet Office's Government Gateway contract. In this case, the section 43 exemption was held to apply to certain information contained within the contract (including liability caps, performance requirements (KPIs, service levels, service credits), the benchmarking model, charges, the financial model, change control notifications and datacentre information). However, it was also held that although the exemption applied, with the exception of the financial model and datacentre information, the information should be disclosed. This is because the public interest in disclosure of the information outweighed the commercial prejudice which the parties to the contract might suffer.
It remains to be seen whether the combination of increasingly wider disclosures of contract information under FOIA, combined with the new contract publication requirements, will lead to reluctance to include certain information within contracts. For example, through inclusion of information within separate 'policy' and 'procedure' documents which the parties must comply with.
Where and when will ICT contracts be published?
ICT contracts are to be published:
- within 20 days of the end of the public procurement standstill period;
- in re-usable format (i.e. Word rather than PDF) on the relevant Central Government body's website; and
- on the http://www.data.gov.uk/ website if they cannot be published on the Central Government body's website and, in any case, contract should be accessible from this website.
Transparency Guidance Note - tender documents
The new publication requirements apply from September 2010 to central government tender documents for contracts with a value of £10,000 or more.
What is a 'tender document'?
This requirement will apply to template tender documents for all formal procurements (including Part B Procurements or those not covered by full range of procurement rules) which are issued after 1 September 2010. They will typically include (depending on the type of procedure):
- Advertisement of the requirement (e.g. Prior Indicative Notice, OJEU notice)
- Pre-Qualification Questionnaire (PQQ)
- Invitations to Participate in Dialogue (ITPD)
- Invitations to Tender (ITT) (including requirements and terms and conditions)
- Invitation to Quote (for contract extensions)
Where there are no 'traditional' tender documents, the public body will need to consider what alternative documents can be published for the purpose of transparency.
Bids received from suppliers in response to template tender documents are not considered 'tender documents' which must be published.
Are there any exceptions to the requirement to publish tender documents?
There may be some exceptions to the publication requirements, such as:
- negotiated procedure "without notice" documentation, as publication would change the procurement procedure;
- Call-off arrangements under a Framework Agreement where there is a direct call-off and no mini-tender. If there is a mini-tender, then public bodies should still publish relevant mini-tender call-off documentation;
Where and when will tender documents be published?
Tender documents will be published on the Businesslink website.
The Cabinet Office has provided, in its guidance, details and pro-formas for submission of tender documents.
What about intellectual property rights and interaction with the 'Re-Use Regulations'?
The Cabinet Office guidance states that documents should be released under the "copyright" terms and conditions which appear on the http://www.data.gov.uk/ website. No comment has been made on how this will work with the Re-Use of Public Sector Information Regulations. These regulations govern the re-use of existing documents held by public sector bodies (re-use is defined as "the use by a person of a document held by a public sector body for a purpose other than the initial purpose within that public sector body's public task for which the document was produced"). For example, what if contract documents contain third party intellectual property which may have been subject to exemptions from disclosure under the Regulations?
Note that the EU Directive on the Re-use of Public Sector Information is currently subject to review at European level (a consultation was launched recently by the European Commission). So, any decisions on interaction with the Regulations at UK level may be subject to further change in the future in any case.
New central government procurements and transparency - key action points
Given the uncertainty around, for example, precisely which bodies are covered by the new guidance and also what rules will apply to non-ICT contracts when they are required to be published from January 2011, it is difficult to give definitive advice as to what steps public bodies should take.
However, we recommend that all public sector bodies (even those such as local authorities which are not currently covered by the new guidance) take the following steps in relation to all new procurements (i.e. even non-ICT procurements). Further detail can be found in the Transparency Guidance Notes:
What about the other transparency aims announced in the Coalition Agreement?
The Transparency Board within the Cabinet Office has been given the task of driving forward the objectives announced in the Coalition Agreement relating to access to, availability of, and ease of use/re-use of government data. The Board is also taking responsibility for the http://www.data.gov.uk/ portal on which public sector information is to be made available.
The Transparency Board met for the first time on 24 June 2010 and, during its first meeting, laid down some basic principles. These are based on the Coalition Agreement's stated aims around transparency and use of public sector information. They were set out in the minutes to their meeting and promptly (on 25 June) published on the http://www.data.gov.uk/ website.