Following our item on transparency commitments and publication requirements in the October edition of our health legal update, guidance has now been issued on the third transparency commitment identified by the Government entitled Publication of New Central Government Contracts.
This new commitment came into force on 1 January 2011, and as previously expected, will apply to contracts and tenders over the value of £10,000. It will replace the commitment and guidance issued around publishing new ICT contracts, but is separate from, and additional to, the potentially overlapping commitment to publish online new items of central Government spending over £25,000 from November 2010.
As with the other commitments, this obligation to publish new central Government contracts will apply to NHS bodies.
All information that constitutes a contract should be published. This will include, as a minimum, the specification, terms and conditions, associated schedules (which may include the winning tenderer’s bid) and the overall pricing (though not necessarily a breakdown of pricing structure).
However, if any part is covered by an exemption under the Freedom of Information Act, redactions can be justified. When submitting their bids, suppliers should be given the opportunity to identify sensitive pieces of information. Departments are responsible for making these assessments and the procedures for redactions will be at departments’ discretion. However, it is envisaged that a two way discussion should be used to inform the redactions process.
Engagement with current and future suppliers, to ensure awareness and understanding of the requirements of the transparency agenda and the implications of publishing contracts, is encouraged. Annex A to the guidance provides precedent text to be added to the relevant commercial pages of websites.
Departments should also ensure that when entering into a new contract provisions are contained within the contractual terms and conditions to allow for publication. Contractual terms and conditions should be stated upfront in the tender documentation. Annex B contains suggested text to be inserted in the ICT Model Terms and Conditions and other points to consider. These clauses can be used or adapted for use in goods and service contracts and similar principles can be applied to works contracts.
All new contracts should be published on Contracts Finder, the Government portal that will host publication of various documents in relation to procurement and contracting. This should be done within 20 days following the end of the standstill period. Annex C to the guidance provides an introduction to the Contracts Finder.