Policy note issued on contracts and compliance with transparency principles

The Crown Commercial Service has issued a policy note on how public bodies should comply with Government demands that they disclose contract and related information that may previously have been withheld on grounds of commercial confidentiality.

The presumption in favour of disclosure of information was contained in a set of general transparency principles issued by the Government on 24 March 2015. It requires procurers to set out in advance of a contract award, the types of information to be disclosed to the public, and then to publish that information in an accessible format.

The procurement policy note (PPN) applies to all central government departments including their Executive Agencies and Non-Departmental Public Bodies. Together these are referred to in the PPN as ‘In-Scope Organisations’.

However, all other contracting bodies “are strongly encouraged to adopt Government’s new approach.”

This will apply to all contracts advertised on or after 1 September 2015.

The policy note says that In-Scope Organisations are required to take the following key actions:

• for all new procurements advertised on or after 1 September 2015, discuss additional transparency requirements with suppliers as early as possible in the procurement process to agree the types of information to be disclosed on contract award. "To do this public procurers should familiarise themselves with the types of information that has been redacted on contracts historically or withheld under FOIA and use this as the basis of discussions with suppliers";
• explore a range of types of information for disclosure which might typically include: (i) contract price and any incentivisation mechanisms; (ii) performance metrics and management of them; (iii) plans for management of underperformance and its financial impact; (iv) governance arrangements including through supply chains where significant contract value rests with subcontractors; (v) resource plans; and (vi) service improvement plans;
• continue to ensure this information is made available to, and is accessible by, the public either by uploading the information into the ‘Transparency’ section of their own websites on gov.uk;
• update the information as required during the life of the contract so it remains current; and
• ensure they do not over-redact contracts and that any redactions they do make should be in line with the Transparency Principles.

The Crown Commercial Service acknowledged that there remained some limitations on what could be disclosed and these reflected the Freedom of Information Act.

“Where information is genuinely sensitive or falls within national security grounds, then it should not be disclosed under this policy,” the PPN said. “In establishing genuine sensitivity, In-Scope Organisations should work closely with suppliers to test areas likely to be contentious such as pricing and financial incentives.”

The note added that In-Scope Organisations should update the published information when significant changes have occurred during the life of the contract.

“This might mean, for example, setting out plans for performance improvement at the start of the contract, and detailing specific plans if performance improvement is required later on in the contract life,” it said.

“Where financial incentives are being used to drive performance delivery, these may also be disclosed and published once milestones are reached to trigger payments.”

The principles were designed to enable the public to see a current picture of contractual performance and delivery that reflected a recent point in the contract’s life, the Crown Commercial Service said.

It added that in-scope organisations should also ensure that the data published is in line with Open Data Principles.

The Crown Commercial Service said it would review the data published in six months’ time, with a view to establishing whether data is being published in line with the PPN and the potential to standardise data format to maximise accessibility.

A copy of the procurement policy note can be viewed here.