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I work mainly with landlords, councils and charities across the UK, with many pieces of work involving procurement. Spookily enough, this is one area where the EU has had an influence for a couple of decades, one that must surely change in the post-Brexit world. Clearly when I do work (as I occasionally do and immensely enjoy), in Southern Ireland (Deisceart Éireann), OJEU still rules.
If a public body made a purchase, SocialHousing landlords being regarded as ‘Public Bodies’ for this legislation, OJEU (Open Journal of the EU) rules and legislation kicks in.
Putting my cards on the table, the rules are there to help contracting bodies make considered decisions and be fair to tenderers taking part. I believe that level playing fields are important, having been a supplier in the past and maybe feeling at times, I had been led down a garden path on occasion. Days, whole weeks, maybe months of time wasted on occasion, that I will never get back.
So, used correctly, OJEU rules are a safeguard, a fair way to choose appropriate supplier and a useful tool for a social housing landlord or council, if they are spending £1.2m on software or £13m on a planned maintenance programme, with one or more partnering contractors.
Since the 1st Jan 2021, the UK and its public bodies, can have more freedom over procurement. One of the ‘sunny uplands’, so to speak. Just to curb the excitement, we do seem to have a current government better doing the spin than the delivery. A bit better at talking about it, rather than getting it working, in the recent Green Paper, the forward proudly declares “The end of the Transition Period provides an historic opportunity to overhaul our outdated public procurement regime”.
I am sure that was in everyone’s minds as all that Covid19 PPE was procured, in contrast I think Housing Associations and Local Authorities will still in the future be strictly held to account. There is plenty of rhetoric on it being more “Innovative, flexible, transparent and green than the current European Union regime”. There is also talk of boiling down many hundred of rules to a simpler framework. While this sounds good, there is scant evidence that industry feedback have actually currently been taken into account as yet. Westminster can currently feel like a black hole for business its fair to say, so this is no surprise.
The Green Paper does make reference to “decisive shift away from awarding contracts based primarily on price”. In my experience of looking for software and applications solutions recently, creating a new foundation for future transformation, its rare that price accounts for more than 30% of scoring. For one client I remember a very heated discussion about, “Well Tony what if it costs us another £100k over 5 years?”. My answer was, “Look outside the office here, four people represent £100k costs in a single year. With 135 staff, saving 4 people or transforming their jobs, makes that saving in year one”. Now forgive me if that sounds brutal, but these are potential savings that good transformations can bring. Obviously good demonstrations flesh out any smoke & mirrors.
Buying software, application and platform solutions, is very different from buying repair services or kitchens in bulk. Currently blanket T’s and C’s on frameworks may work for bulk materials, but even those often work badly for software. Penalty clause caps are a common discussion area for me currently with multiple suppliers for example. Contracts need to fit the product being procured. So I would like to see innovation around areas like that, particularly for software, SaaS and integrated systems. Hopefully, suppliers have fed that back into the process, so far. We should see the outcome from the “Consultation Response”, by the end of December.
Legal folk in the know who I work with closely, seem to be hoping for a “New Competitive Flexible Procedure”, to be in the pipework. This should allow greater engagement with suppliers where appropriate. Less popular with a few contracting bodies I have had informal chats with, is the suggestion that publishing of advance “pipelines of future procurement” has been suggested. In some cases this could work well, in others less so. I still think that PIN’s (Prior Information Notices) and structured pre-market engagement, will be the best link with software suppliers and the whole ‘warm up’ process. I know how this generally works in my projects. Please feel free to get in touch to let me know how its worked for your organisation, or not.
The key to this, is that to be effective, the new rules need to cut red tape, not create more overheads, as other areas of Brexit clearly have. Burden on procurement and legal staff needs to be reduced, not increased.
I am going to look out for the fully formed, hot and steaming final recommendations, hopefully we will see in December 2021. I would recommend that your procurement specialists do too!
Related Post: Pre-Market Engagement, Scope properly before you procure
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Lucky Daye – Buying Time.
(c) Tony Smith, Acutance Consulting www.acutanceconsulting.co.uk 07854-655009
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