Procurement Transparency Principles Update

Contracts Finder

The English Government is committed to greater transparency for the public to hold public bodies and politicians to account. 

​This includes the publication of winning bids and signed contracts. Read on to find out how the changes to public procurement will impact you.

What are the changes to the transparency principles?
​

​The new transparency measures include:
 
● Requirements in the Public Contract Regulation (PCR) 2015 to publish advertised opportunities and contract awards above the thresholds of £12,000 (inclusive of VAT) for Central Government authorities – on Contracts Finder.

● Policy commitments for all central government contracts over the value of £12,000 (inclusive of VAT) to be published in full online.

● Items of central government spending over £25,000 (exclusive of VAT) to be published online.

● Adoption of the Government’s Transparency Principles.
 
The UK Government has also recognised that e-tendering presents a barrier to the provision of unrestricted free and direct access to tender documents where a registration is required to access the tender documents on an e-procurement platform.
 
This means insufficient visibility of the tender documents is provided to the general public.

​Procurement organisations therefore need to publish copies of the tender documentation on Contracts Finder.
 
This includes:

• invitation to tender (ITT)/request for quotation,
• standard selection questionnaire (SQ),
• Terms and conditions of contract.
• the specification,
• site plans.

Who is affected by the changes?
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Public procurement departments in England have a legal requirement to publish contract award information on Contracts Finder.

Scottish, Northern Ireland or Welsh devolved functions, the procurement of health care services, maintained schools, academies and sixth form college corporations are all exempt from the new legal requirements.
 
Once a contract is awarded (including contract renegotiations and contract extensions that results in a new contract, and call off contracts under a framework/DPS) the full company name of the winning bidder, the date the contract was entered into, the total contract value and if the winning bidder is an SME or a VCSE MUST be published on Contracts finder.
 
Where a contract is terminated following publication of the contract, buyers should update the details on Contracts Finder to explain that the contract is terminated and the reason for termination.

When MUST buyers publish contract awards?
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There is a requirement on central government authorities to publish the tender and contract documents with the awarded opportunity notice on Contracts Finder within 30 calendar days after the contract award date.
 
This also applies to executive agencies and ALBs/NDPBs such as the Crown Commercial Service, on a voluntary basis.

These bodies should aim to publish the awarded contract documents with the awarded opportunity notice on Contracts Finder within 90 calendar days after the contract award date.
 
For all other contracting bodies there is a 90 calendar day timescale from the day after the contract is signed by the last contracting party.  

​If the deadline for publication of the information falls on a non-working day, the contracting authority has until the end of the next working day to publish the information on Contracts Finder.

What information should I disclose? 
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The following information should generally be disclosable:

• T&C’s and Signed contract, including the contract term and options for extension,
• winning tenderer’s bid
• specification/description of services, manner of provision etc,
• overall contract value,
• warranties, indemnities and other protections.

Can tender information be withheld?
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In some circumstances, limited redactions will be made to some documents before they are published in order to comply with existing law and for the protection of national security.

Contract award information may be withheld if its release would impede law enforcement, would prejudice the legitimate commercial interests of a particular supplier or prejudice fair competition between suppliers.
 
Exemptions from publication are permitted by following the provisions of the Freedom of Information (FOI) Act 2000.
 
The circumstances where an entire tender document pack can be withheld are unlikely.

Only where exemptions apply and can be justified should elements of the contract be withheld from publication.
 
Further information about redacting documents can be found here.

Can suppliers protect their commercial information?
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​Procurement Transparency Principles allow supplier contract information to be reasonably withheld on the grounds of commercial confidentiality, but only genuinely sensitive information is withheld. Examples include:
 
Pricing - open book costing - details of profit margins and overheads and any information that would allow an individual to calculate the individual price of elements included in a pricing template.
 
Intellectual property –trade secrets and/or innovative or unique technical solutions and methodologies.
 
Where information contained within the tender is protected by supplier copyright, buyers should assess the information against the Freedom of Information Act principles to ascertain whether or not an exemption applies and can be justified after applying the public interest test.
 
Buyers can add a disclaimer to the publication on Contracts Finder that makes it clear that, should the public wish to copy or re-use such information, they will need to seek the necessary authorisation from the copyright owner (supplier).

About the author

Naomi Clews

Naomi Clews, management consultant and owner of boutique procurement advisory firm Naomi Clews Consultancy Limited has 18 years public procurement process knowledge, experience and skills. Find out more here. ​