Has CIPS offered The Queen an honorary fellowship yet?

Peter Smith, procurement expert and author, wonders: Is this the first time Her Majesty The Queen has uttered the word “procurement?”

Earlier this month, The Queen opened this session of the UK Parliament with the traditional speech outlining the forthcoming legislative agenda, written for her of course by the government and read out by the dutiful monarch. It included these famous words …

“Laws will simplify procurement in the public sector.” Actually she stumbled and said “public session” then quickly corrected herself!

I suspect procurement has cropped up before in a Queen’s speech actually, but the changes in public sector law will come about because of Brexit. Having left the European Union, the UK has the opportunity to set its own procurement laws, although even under the European system, there was some scope for countries to adapt core regulations locally.

So recently a government Green Paper titled ‘Transforming Public Procurement’ was published, outlining suggested changes to the procurement laws. Green Papers invite consultation, although I have my doubts as to whether politicians and officials really want input, even though there have been thoughtful responses, not least from academic procurement law experts such as Professor Albert Sanchez-Graells and Dr Pedro Telles.

One major change which the government believes will “simplify” matters is giving buyers (contracting authorities) more apparent flexibility in terms of how they conduct procurement, replacing well-defined legal procedures with more general principles. In theory that gives buyers more freedom – but then that aim is undermined in the Green Paper, as if the rule-makers got cold feet at the prospect of unfettered procurement innovation.

So the freedom is tempered by the need to follow guidance that will be issued by the Cabinet Office (the central department that takes the lead on UK government procurement). As Sanchez-Graells says in his excellent paper responding to the Green Paper, this could result in “regulatory substitution by means of the offloading of regulatory content from statute to guidance.”

Instead of being based on law, disputes might come down to whether a buyer has followed the current “guidance.” And the sting in the tail is that the Cabinet Office can intervene if it sees a contracting authority not following the guidance. Clearly, this could make buyers even more risk averse and cautious. As the professor says, the oversight model “would be based on a system of sanctions that would create perverse incentives capable of chilling the innovation it seeks to spur.”

On the other hand, if different buyers do diverge and use different processes, then a supplier may well face different procurement processes every time they respond to an opportunity. Now maybe that is a price worth paying for freedom on the buy-side, but let’s not pretend it is “simplification” or will make life easier for the suppliers.

In terms of technology, the Green Paper sensibly recommends a single registration system for suppliers, so they don’t have to keep providing basic information every time they put in a bid (“vendor master data” you might say). It is not a new idea – indeed, I argued for that move when working as a consultant to the government back in 2009. But there is limited recognition of the role of technology in the Green Paper beyond that really, and there is little in the way of a real vision or strategy for public procurement.

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Finally, there is the issue of transparency. We have seen a loss of trust in public procurement in the last year with allegations of cronyism and outright corruption in government buying around PPE and more. Surely this is the time for a major push on transparency? Well, there are some nods towards that in the Green Paper. But as soon as you read that the Freedom of Information (FOI) rules and constraints will still define what can and can’t be published, you know this isn’t a serious attempt to change matters. Anyone who has asked to see a contract or key procurement documents under FOI will know that if and when you finally are allowed to see something, a mass of black-line redactions makes the disclosure pretty much worthless.

The other point on transparency is that whilst the public confidence and openness aspect is important, the real prize could come from more communication and insight within the public sector procurement community itself. At the moment, good practice, bad practice, supplier performance, failures, or successes are all barely visible beyond each individual organisation, even to other similar public bodies.

I have written about this at greater length here, in a briefing paper for a leading UK political think-tank. If we could get data, information and knowledge flowing within the public sector commissioning and procurement community, the prize could be huge.

That will require smarter use of technology too, to make all the data and information that is available accessible and usable. It also needs some “rules” in terms of data standards, how digital platforms should be used and so on. But providing the strategic framework and defining those standards and policies would I believe be a far better use of Cabinet Office resource than intervening when some poor local council hasn’t followed “guidance” on exactly how an individual contract was awarded.

The opinions expressed are those of the author and not necessarily the official position of Spend Matters