Publish or be damned: Transparency Obligations – What Contracting Authorities need to know

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The decision by the High Court in the Good Law Project’s challenge against the Secretary of State for Health and Social Care in relation to his failure to comply with transparency obligations has received vast amounts of media attention over the last month.

Whilst it has been widely publicised that the Secretary of State was found to have acted unlawfully by failing to publish contract award notices within the 30-day period set out in regulation 50 of the Public Contracts Regulations 2015 (PCR), the Judgment also helps to clarify the legal position on the publication of redacted contracts on Contracts Finder.

This clarification is of key importance to contracting authorities as the Judgment re-emphasises the status of the Transparency Guidance as defined below, and the obligation to comply with its provisions, absent a good reason not to.

This blog post considers the legal requirements for publication of contract award notices and redacted contracts, and aims to provide clarification where the legal position is difficult to navigate.

Policy requirements

Prior to the Judgment, the relevant time period for publication of contracts on Contracts Finder was not clear, and was stated to be advisory:

  • The document titled ‘Publication of Central Government Tenders and Contracts: Central Government Transparency Guidance Note (November 2017)’ (Transparency Guidance), which sets out the requirement to publish the provisions of any contract with a value over £10,000 on Contracts Finder, “advises” that contracts should be published with the award notice within 20 days* following the award of the contract or if a standstill period applies within 20 days following the end of that period.  The footnote then provides further detail – *Guidance on the Public Contracts Regulations 215 recommends that the award details are published no later than 90 calendar days after the contract award date.
  • The CCS document entitled ‘Guidance on the new transparency requirements for publishing on Contracts Finder’ (the reg. 108 Guidance) “recommended” that the information required by regulation 108 of the PCR is published no later than 90 calendar days after the contract award date.

The Judgment provides helpful clarification on both the applicable time-frame for publishing information on Contracts Finder and on the obligation to comply with the terms of the policy documents. These clarifications are explored in further detail below.

1. Time period for publishing redacted contracts

Whilst the Judgment does not consider the regulation 108 requirements as this was a late amendment to the Claimant’s case and the application to amend the Claim Form was refused, the  Judgment does make clear in paragraph 51 that the policy requirement to publish contracts on Contracts Finder is to publish within 20 days of contract award and not 90 days “Until that time, he had thought that the policy was to publish contracts within 90 days of award whereas the policy was to publish within 20 days of the award or the end of the standstill period.”

We consider the question of when the clock starts for publication in section 5 below.

2. Time period for publishing contract notices on Contracts Finder

The court did not specifically consider the wording “It is advised that contracts are published with the award notice within 20 days” set out in the Transparency Guidance and instead focused only on the requirement to publish a CAN in 30 days and publish the redacted contract in 20 daysTherefore, the legal position on the timing for publication of a Contracts Finder notice required under regulation 108 is not clear.

 The court does recognise that “the legal position in relation to reg. 50 is different from that in relation to reg. 108. The former contains a hard deadline for publication of CANs. The latter imposes an obligation to publish within a reasonable time. This means that the Claimants are obliged to rely on the recommendation in the reg. 108 Guidance as supplying the deadline of 90 days.”

However, whilst the regulation 108 Guidance recommends that the Contracts Finder notice is published within 90 days after contract award, it remains to be seen whether in the future the courts would go so far as determining that the obligation is to also publish the notice within 20 days as the obligation to publish a redacted contract is expressly linked to the publication of the Contracts Finder notice.

This is an area of law that would benefit from further clarity, as given that the Transparency Guidance specifically refers to the recommended 90 day limit for the Contracts Finder notice under the Regulation 108 Guidance, it would be a perverse outcome if contracting authorities were held to the 20-day limit when alternative CCS guidance states a longer limit.  Nevertheless, on the basis of the 20- day time limit for the publication of redacted contracts on Contracts Finder, operationally it would make sense for Contracting Authorities to publish the notice at the same time the redacted contract is published.

3. Obligation to comply with the Transparency Guidance

Prior to the Judgment in the Good Law Project case, it was widely understood by Contracting Authorities that the ‘advisory’ nature of the Transparency Guidance meant that Contracting Authorities did not have a legal obligation to comply with the provisions.

However, the wording in the Transparency Guidance that it is ‘advised’ to publish the contract within 20 days was stated by Chamberlain J not to reduce the obligation to comply: “the Transparency Guidance says that it is “advised” that contracts should be published within 20 days following the award of the contract or the end of the standstill period. Does that in some way attenuate the obligation to comply (absent good reason to depart from it)?  In my view, the answer is “No”” and therefore going forwards contracting authorities should proceed on the basis that the obligation to publish redacted contracts within the  20-day time limit is a strict legal requirement (absent good reason to depart), rather than seeing this as an advisory policy that does not impose legal constraints.

Chamberlain J’s analysis contains three reasons why the ‘advisory’ nature of the policy document does not diminish the obligation to comply:

  1. there is no uniform drafting style adopted by public bodies, and there is generally no reason to distinguish strictly between mandatory and hortatory because policy can always be departed from for good reason. Examples of good reasons could include risk of challenge and/or delay in deciding whether to actually contract following the conclusion of a procurement;
  2. some policies, by their own terms, leave a measure of discretion or leeway to the decision-maker. Whether a particular policy confers such a discretion or leeway is a matter of construction to be considered by the court;
  3. the 20-day time limit is framed in precise terms by reference to the contract award date or the end of the standstill period. One of the Governments aims under the Transparency Principles is to support “the functioning of competitive, innovative and open markets by providing all businesses with information about public sector purchasing and service providers’ performance”.  That aim would be significantly undermined if the time limit were to be understood as imposing no legal constraint at all on Government, even in the absence of good reason for departing from it.

It remains to be seen how the courts will interpret this clarification going forwards, however we urge contracting authorities to review their compliance with the Transparency Guidance and put robust procedures in place (if they do not already exist) to ensure that the transparency obligations are met in the stipulated time-frames.

4. Where to publish Regulation 50 Contract Award Notices

One deadline which should be clear to all contracting authorities is the Regulation 50 requirement to publish contract award notices within 30 days of contract award. However, despite the legal requirement being clear, following the UK’s exit from the European Union, the rules on where to publish a Contract Award Notice (and any subsequent notices) can be confusing and hard to follow.

PPN 08/20 introduced the new ‘Find a Tender’ portal which contracting authorities should use for the publication of contract award notices for procurements launched after 1 January 2021.

However, for procurements started but not finalised prior to 23:00 on 31 December 2020, contracting authorities are required to continue to publish contract award notices in OJEU/TED. After some initial teething problems, technical difficulties associated with the publication of CANs from UK organisations on OJEU/TED has now been resolved and contracting authorities should ensure that notices are published in the same manner as prior to EU exit.

It is important to note that the obligation to publish in OJEU/TED also extends beyond the CAN to any other notices relating to the procurement.  There are continuing obligations to publish notices (including contract amendment notices) on OJEU/ TED for procurements that were either finalised, or launched but not yet finalised, prior to 23:00 on 31 December 2020 (PPN 10/20).

However PPNs 08/20 and 10/2 do recommend that contracting authorities also publish such notices in Find a Tender.  This creates additional administration considerations which contracting authorities should bear in mind and we note that not all procurement portals have continued to support the dual publication of contract notices on OJEU/TED as well as Find a Tender.

5. When does the clock start for publication of CANs and redacted contracts

One further point that is worthy of clarification is the point from which a contract is considered to have been ‘awarded’ and when the clock starts for the deadlines associated with the publication of the contract award notices and redacted contracts.

The guidance and judgement does not provide a clear conclusion on whether a contract is awarded from the point of execution, or whether it is awarded from the point at which the contracting authority has completed its evaluation and thus identified the successful bidder (which may be much earlier in the contracting process).  Whilst ‘award’ typically means determining who has won the tender process, in this context it does not make sense for all obligations to them from that event as a contract does not exist (nor is it capable of publication) until it has been concluded.

Until the standstill/challenge period is over, there is a risk that either a decision not to contract or a decision to re-run all or part of the procurement will be made and in that context the paramount requirement should be to do nothing that will distort any re-tender process.  This  is especially sensitive for winning bidders as currently they do not receive feedback whereas losing bidders do and the publication of a redacted contract could give another bidder some advantage in a re-tender.  It would be much clearer if the term ‘award’ was abandoned in this context and the guidance clarified that the obligation to publish CANs and redacted contracts only begins from the date on which the contract is concluded.

Due to the ambiguity on the precise timings, for complex contracts requiring internal approvals contracting authorities should refrain from formally awarding contracts until the point in time that they have all necessary approvals to execute the agreement, to ensure that the approvals process does not cause delay to the filing deadlines.  That being said, contracting authorities should not intentionally refrain from executing or awarding agreements with the sole intention of avoiding the obligation to publish contract award notices.

Authored by Rebecca Walker, with support from Mark Vipan and Paul Stone.

 


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