How long will emergency procurement rules continue to be used?

Gwrthodwyd y cais gan Cabinet Office.

Dear Cabinet Office,

I have previously emailed with the Crown Commercial Service on behalf of the Cabinet Office to ask how it will be decided that public bodies can no longer bypass normal tendering procedures by using Regulation 32(2)(c) of the Public Contract Regulations (PCR) 2015. I specifically wanted to know:

A) who has responsibility for deciding when it is no longer necessary to use emergency tendering processes, and
B) how will it be decided that the situation no longer requires the use of emergency regulations?

Yesterday, the government was found guilty of acting unlawfully by failing to publish contracts in a timely manner. The emergency contracting procedures also reduce accountability, and when I inquired about this via email, I was simply told that "The PPN will therefore not 'time out' while the PCR 2015 remain in use." This did not answer my question. The PPN guidance note by the Cabinet Office initiated the start of emergency procedures being used, and so it must be the responsibility of the Cabinet Office to issue guidance saying the emergency situation no longer applies.

The longer that contracts are allowed to be awarded directly without competition, the more possibility there is of a lack of transparency and accountability in the way public money is spent. There is therefore a great public interest in the above two questions being answered. Please may I have a substantive answer to questions A and B above?

Yours faithfully,

John Lubbock

Dear Cabinet Office,

I was told that I would receive a response to this request by 19 March. It is now 25 March and there has been no reply. I am concerned that there is no plan or accountability for when emergency contracting regulations will no longer be in use, and that this allows public bodies to award direct contracts without tender or competition, leading to inefficiencies in securing the best price for public money. The pandemic has been ongoing for over a year now, and arguable these rules should no longer be applicable.

It is imperative that the public be told when these measures will expire and normal rules be brough back in force, and if I do not recveive a reply to this request promptly, I may have to take a complaint to the ICO.

Yours faithfully,

John Lubbock

Dear Cabinet Office,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Cabinet Office's handling of my FOI request 'How long will emergency procurement rules continue to be used?'.

I have received no update on this FoI request, which should have been responded to by 19 March. It is now 7 April. The question of how long public bodies can continue to award contracts without tender is hugely important in terms of transparency and accountability in public sector contracting, and the refusal to reply from the Cabinet Office shows how unseriously the government takes its commitment to accountability. I am therefore requesting an internal review in the hope that this prompts a response to my FoI request.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/h...

Yours faithfully,

John Lubbock

FOI Team Mailbox, Cabinet Office

Dear John Lubbock,
Thank you for your email. 
As your email of 20 February 2021 was asking for an explanation of
government policy rather than a request for recorded information it was
not treated as a Freedom of Information request. 
Instead your request was handled by our Public Correspondence team who
responded to your questions on 15 March 2021. 
Advice on how to make a valid request can be accessed on the Information
Commissioner’s website at:
[1]https://ico.org.uk/for-the-public/offici...
Yours sincerely,

Freedom of Information Team

Cabinet Office

dangos adrannau a ddyfynnir

Dear FOI Team Mailbox,

I would like clarification about where the Public Correspondence Team has replied to this FoI request. The Cabinet Office says 'Instead your request was handled by our Public Correspondence team who
responded to your questions on 15 March 2021. ' I have not recieved any such correspondence from the Cabinet Office, and I would like to be informed about where I can find the reply that the Cabinet Office suggests they have given to this request.

Yours sincerely,

John Lubbock

Cabinet Office Correspondence,

Dear Mr Lubbock,

Thank you for your email of 20 February 2021 regarding the use of
emergency procurement procedures by public contracting authorities. Our
apologies for the delay in replying to you.

There are well-established procedures set out in the Public Contracts
Regulations 2015, the legal framework governing public procurement, to
enable contracting authorities to procure goods, services and works with
extreme urgency in exceptional circumstances. These procedures are used by
contracting authorities every year - the procurement rules were not
suspended or relaxed by the Government and it is for individual
authorities to make their own determinations on when to use these
procedures.

Procurement Policy Note (PPN) PPN01/20 published on 18 March 2020 provided
information to central departments and the wider public sector on public
procurement regulations and responding to the pandemic. Of particular
relevance to your enquiry, the information note reminded authorities that
they may enter into contracts without competing or advertising the
requirement so long as they are able to demonstrate the following tests
have all been met: 1. There are genuine reasons for extreme urgency 2. The
events that have led to the need for extreme urgency were unforeseeable 3.
It is impossible to comply with the usual timescales in the Public
Contracts Regulations 4. The situation is not attributable to the
contracting authority More information on the tests is provided in PPN
01/20. I hope the above addresses your concerns.

Yours sincerely,

Grace

Correspondence Officer

Dear Cabinet Office,

I'm afraid that once again, this does not address the specific concerns I have. What the Cabinet Office is saying is that the emergency provisions will continue for as long as, presumably, the Cabinet Office decides. What metrics it will use to decide that it is an emergency is not for the public to know. The pandemic has now been going on for over a year, and presumably the inability for contracting bodies to meet the normal timescales could go on much longer than this. You must be aware that the public is concerned that the pandemic has led to a severe reduction in accountability and transparency in the awarding of government contracts, and the public has a right to know when we will be returning to competitiive tendering as standard practice. It is simply not good enough for the Cabinet Office to say, effectively, 'we will go on like this as long as we want'.

I would like the Cabinet Office to give some kind of timescale regarding when you hope that public bodies will return to competitive tendering by default. We are hopefully nearing the end of the pandemic, and the ability for public bodies to say it is still an emergency situation which requrires them to bypass tendering will no longer be acceptable at some point. I would urge the Cabinet Office to make public some kind of expected timescale for returning to normal practice, because the answers you have provided to my repeated requests are simply not good enough to ensure public confidence in the impartiality of contracts being awarded.

Yours faithfully,

John Lubbock

Cabinet Office Correspondence,

1 Atodiad

Dear Mr Lubbock,

Thank you for contacting the Cabinet Office. Please find a response
attached.

Yours sincerely,

Public Correspondence Team

Cabinet Office

Dear Cabinet Office,

I am marking this request as 'refused', because you are continuing to ignore the question I am asking. You have told me a number of times that 'it's not up to you', and abdication of responsibility in my view, but not what I asked. What I asked is 'how will it be decided when it is no longer an emergency requiring these regulations to be used?' What I understand from your response is that there is no objective metric by which any situation is judged to be an emergency or not, and therefore, government departments can go on saying there is an emergency and issuing contracts without tender for as long as they want.

I would like you to confirm or refute this assertion - that departments can go on issuing emergency contracts for as long as they want to. Until I get an answer to this question, I will continue to ask it. I am also requesting an internal review of how this FoI request has been dealt with, because you have repeatedly avoided answering the questions I have asked.

Yours faithfully,

John Lubbock

PublicCorrespondence Mailbox, Cabinet Office

Dear John Lubbock,
Thank you for your email of 16 July regarding emergency procurement rules.
The Freedom of Information Act gives individuals and organisations the
right of access to all types of recorded information held, at the time the
request is received, by public authorities such as the Cabinet Office. 
Section 84 of the FOIA states that in order for a request for information
to be handled as a FOI request, it must be for recorded information.  
For example, a FOI request would be for a copy of a policy, rather than an
explanation as to why we have that policy in place. On occasion, the
Cabinet Office receives requests that do not ask for recorded information,
but ask more general questions about, for example, a policy, opinion or a
decision. 
We believe your request did not fall within the FOIA regime as it was
asking a general question and an explanation, rather than for a copy of
something the department holds.
I am satisfied that the Cabinet Office has investigated and responded to
your queries as far as we are able, and we have no further comment to make
on the issues you have raised. Accordingly, we will not be responding to
any further correspondence on this particular matter. We will, of course,
respond to any new issues you raise.
I hope that you find this response helpful. Thank you once again for
contacting the Cabinet Office.
Yours sincerely,
Freddie
Correspondence Officer

Public Correspondence

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