Jenny Beresford-Jones examines the recent procurement policy note (PPN 07/21) on publication of information to Contracts Finder.
The new policy note (PPN 07/21) updates and replaces an older PPN (PPN 07/16). It is a helpful update that addresses some of the grey areas that have arisen in the use of Contracts Finder since it was first introduced in 2015. It also contains a useful FAQ section.
The new guidance is now divided into two parts. Part 1 has general application while Part 2 is aimed at central government authorities expressly.
Part 1 - General
Part 1 is mainly a reminder of the “Contracts Finder” obligations that are set out in the Public Contracts Regulations 2015 ("PCR 2015"), adding some helpful new clarifications.
A reminder that these obligations apply where the contract is valued at over £10,000 (central government authorities) or £25,000 (sub-central government plus NHS Trusts). The obligations apply across the public sector, with the exception of:
- authorities whose functions are devolved or mainly devolved functions of Scotland, Wales or Northern Ireland;
- procurements of health care services for the purposes of the NHS; or
- maintained schools, academies and sixth form college corporations.
The guidance reminds all in-scope authorities of the transparency obligations:
- where the authority decides to advertise the contract in some form (e.g. on the authority’s website, in a trade publication) it must also be advertised on Contracts Finder; and
- regardless of whether or not the contract was initially advertised on Contracts Finder, details of all contracts awarded over the de minimis value thresholds must be published.
The timing for this publication of contract award details to Contracts Finder is 90 calendar days after the contract award date for sub-central authorities, and 30 calendar days for central government authorities. This 30-day period has been extended from 20 days in the older version of the guidance – in order to bring the requirement into line with the obligation to publish contract award notices to the Find a Tender service (which has replaced the OJEU).
There had been some confusion around what date should be taken as the “contract award date”. Should it be the date the authority makes the decision to award the contract, or the date of actual signature? The guidance clarifies that for the purposes of calculating the time periods above, the contract award date should be taken as the date on which the contract is signed by the last contracting party. The time period for publication begins on the day following that date (and, if the period ends on a non-working day, then the authority has until the end of the next working day to comply within the timescale).
Part 2 – central government authorities
This section of the guidance is new – it applies to bodies expressly listed in Schedule 1 to the PCR 2015 but departments are encouraged to obtain compliance from their wider “families” of NDPBs and arm’s length bodies.
Details to be published
The guidance gives a steer on what should be published in terms of contract award documentation – and suggests this goes beyond the minimum requirements so as to include both the contract and also associated documents such as the specification, the terms and conditions, or other relevant schedules.
Transparency clauses and dialogue with contractor around publication
The guidance notes the importance of using transparency clauses in the procurement documents, so that bidders are aware that the authority will need to publish the information about the procurement. While the ultimate decision around publication sits with the authority, the guidance does suggest obtaining the agreement of the contractor about what will be published – and that a dialogue is held around what can be disclosed and what redacted. Subject to that, the guidance states that at a minimum the following should usually be published:
- parties, term, extension options, value
- specification, KPIs, other essential obligations
- warranties, indemnities and other legal protections (values redacted if necessary)
Exemptions and redactions
The guidance gives a helpful amplification of the sorts of information that may be reasonably withheld on the basis of one of the FOIA exemptions. For example, details of profit margins and overheads, financial information which would affect the outcome of a re-bid or future procurement, certain intellectual property details such as proprietary information about the solution being provided under the contract.
A steer is given on how to redact appropriately – by removing information and stating the relevant FOIA exemption relied on. Authorities are reminded to make a copy before redacting (with the original being saved for departmental records).
Finally, the guidance permits contract award notices for contracts awarded under high-volume frameworks or dynamic purchasing systems to be grouped and published quarterly. If this route is being used, the authority needs to document the fact in its publication scheme, including identifying which high-volume frameworks/DPSs it intends to treat in this way.
The Annex to the guidance contains a very helpful summary of the publication requirements and also suggested approaches to some of the more tricky questions that can come up around using Contracts Finder.
For example, does a further Contracts Finder award notice need to be published where a contract is varied or extended? The FAQs state that where a modification is within the scope of changes permitted under Regulation 72 then no new award notice need be published (as the change does not result in a new contract being formed). Where a new contract is formed, then this new contract is of course subject to all the publication requirements discussed above.
Another question addressed is the situation where services are commenced prior to the signature of the contract; what is correct “Contract Award Date” for the purposes of calculating timescales for publication? The guidance suggests taking the day immediately before the commencement of service as the appropriate date in this case.
The remainder of the FAQs are similarly helpful and well worth a read.