What actions you will take to openly publish procurement data?
Dear East Sussex County Council,
I am researcher and developer that uses public sector tender data for my work, I have noticed that you are currently publishing your data via the In-Tend service. This service claims copyright over all the material that you post to it, which means that the data you publish to the site is not open and cannot be used by researchers such as myself, without the permission of in-Tend.
As a Council you’re bound by the Local Government Transparency Code 2015 (https://www.gov.uk/government/uploads/sy..., which requires you to make certain data available under an open license such as the Open Government License, so that the data can be reused by anyone. The transparency code detail why transparency is important:
This Code is issued to meet the Government’s desire to place more power into citizens’ hands to increase democratic accountability and make it easier for local people to contribute to the local decision making process and help shape public services. Transparency is the foundation of local accountability and the key that gives people the tools and information they need to enable them to play a bigger role in society. The availability of data can also open new markets for local business, the voluntary and community sectors and social enterprises to run services or manage public assets. 2. ‘Data’ means the objective, factual data, on which policy decisions are based and on which public services are assessed, or which is collected or generated in the course of public service delivery. This should be the basis for publication of information on the discharge of local authority functions.
The code clearly states that must open up your procurement information:
Procurement information
Local authorities must publish details of every invitation to tender for contracts to provide goods and/or services with a value that exceed £5,000
21, For each invitation, the following details must be published: reference number, title, description of the goods and/or services sought start,end and review dates, and local authority department responsible.
We’ve also tried to find all of the data you published to in-tend on the Contracts Finder web service, where the data is published under an open license, but we were unable to do so. In case you weren’t aware you’re legally required to publish data to the Contracts Finder service. Here’s an excerpt from section 4 of the Public Procurement regulations:
Publication of information on Contracts Finder where contract notices are used
106.—(1) Where a contracting authority sends a contract notice to the EU Publications Office for publication, the contracting authority shall cause information to be published on Contracts Finder within 24 hours of the time when the contracting authority becomes entitled, in accordance with regulation 52(3) and (4), to publish the notice at national level.
(2) The information to be published on Contracts Finder shall include at least the following:—
(a)the internet address at which the procurement documents are accessible;
(b)the time by which any interested economic operator must respond if it wishes to be considered;
(c)how and to whom such an economic operator is to respond; and
(d)any other requirements for participating in the procurement.
(3) In complying with this regulation, contracting authorities shall have regard to any guidance issued by the Minister for the Cabinet Office in relation to the form and manner in which information is to be published on Contracts Finder.
(4) Paragraph (5) applies if such guidance confirms that, for the time being, arrangements have been put in place by or on behalf of the Cabinet Office under which the information referred to in paragraph (2) will, without further action by contracting authorities, be extracted and published on Contracts Finder following the publication of contract notices by the EU Publications Office.
(5) In those circumstances, contracting authorities shall be deemed to have complied with paragraph (1) by virtue of sending the contract notice to the EU Publications Office for publication in accordance with regulation 51.
(http://www.legislation.gov.uk/uksi/2015/...
Clearly it would be helpful if you could make sure that all of your tenders were published to Contracts Finder, but even if this were to happen, we'd still face some problems.
I’m particularly struck by the requirement to provide an internet address at which the procurement documents are accessible. You might not be aware of this, but Contracts Finder users who click on a tender link from In-Tend are directed to the homepage of your In-Tend site, not to the page which hosts your documents. I’m not a lawyer, but I'm fairly sure that you’re not meeting the requirements of the Public Procurement Act when this happens.
We’ve also discovered that In-Tend chooses to block access to the data depending on where the original link was hosted. You can see from this page http://www.in-tend.co.uk/index.php?page=... that In-Tend is blocking users from accessing the data that you publish because it was linked from another site. Open Government License requires data to be available for access and reuse without restriction. It is clear that blocking techniques such as this restrict access to the documents which means that the data can't be open. Obviously, because of the copyright they have placed on your documents, In-Tend are within their rights to do this, but they are able to do this because they are witholding the full link to your data on Contracts Finder.
In-Tend's actions mean that your organisation is failing to meet your legal obligations to provide a specific piece of data required by law and also to publish this data openly. I therefore have these questions for you, which I’d like to ask, under the FOI Act:
What steps will you take to ensure that access to your tender opportunity documents are published under an open license (as required by the Local Government Transparency Code 2015)?
What steps will you take to ensure that the access to the tender opportunity data you publish meets the requirements of an open license, and is available without blocking or restriction by yourselves or any of your partners in the future (as required by the Local Government Transparency Code 2015)?
What steps will you take to ensure that all of the tender opportunity data you publish is available on Contracts Finder (as required under the Public Procurement Regulations)?
What steps will you take to ensure that all of your tender opportunity data is published to Contracts Finder within the 24hrs (as required by the Public Procurement Regulations)?
What steps will you take to ensure that you publish explicit links to the page that hosts your tender opportunity documents to Contracts Finder (as required by the Public Procurement Regulations)?
I await your response within 20 working days in line with the terms of the FOI Act.
Your faithfully,
S. Kennedy
Dear S Kennedy
FOI Request ref: 7665 / What actions do ESCC take to openly publish
procurement data?
Thank you for your request for information about the above. Your request
was received on 23/08/2016 and I am dealing with it under the terms of the
Freedom of Information Act 2000.
We always aim to respond as quickly as possible, and in this case will do
so no later than 21/09/2016, which is the 20 working day deadline. The
deadline is counted from the first working day we receive it, not the date
a letter is written / posted or an email sent.
In some circumstances a fee may be payable and if that is the case, I will
let you know. A fees notice will be issued to you, and you will be
required to pay before we proceed in dealing with your request.
Please quote the above reference number in any communication regarding
this request.
Yours sincerely
Peter Walker
Customer Information Advisor
Communities, Economy and Transport
Tel: 01273 482913 Fax: 01273 481208
Email:[email address]
Website: [1]www.eastsussex.gov.uk
East Sussex County Council
W1D, County Hall
St Anne’s Crescent
Lewes
East Sussex BN7 1UE
My working hours are 08:30am to 14:15pm Monday to Thursday and 08:30am to
13:30pm on Fridays. Outside of these times please do contact the Customer
Information Team and another member of staff will deal with your enquiry.
Dear S Kennedy
FOI Request ref: 7665 / What actions do ESCC take to openly publish
procurement data?
Thank you for your request for information about the above, which has been
dealt with under the terms of the Freedom of Information Act 2000. Your
request and our response are set out below. Please note that any
information we provide is subject to the copyright and reuse of
information terms and conditions set out at the bottom of this email.
REQUEST
under the FOI Act:
What steps will you take to ensure that access to your tender opportunity
documents are published under an open license (as required by the Local
Government Transparency Code 2015)?
What steps will you take to ensure that the access to the tender
opportunity data you publish meets the requirements of an open license,
and is available without blocking or restriction by yourselves or any of
your partners in the future (as required by the Local Government
Transparency Code 2015)?
What steps will you take to ensure that all of the tender opportunity data
you publish is available on Contracts Finder (as required under the Public
Procurement Regulations)?
What steps will you take to ensure that all of your tender opportunity
data is published to Contracts Finder within the 24hrs (as required by the
Public Procurement Regulations)?
What steps will you take to ensure that you publish explicit links to the
page that hosts your tender opportunity documents to Contracts Finder (as
required by the Public Procurement Regulations)?
RESPONSE
Please find attached a response that was co-ordinated with West Sussex and
Surrey county Council.
What steps will you take to ensure that access to your tender opportunity
documents are published under an open license (as required by the Local
Government Transparency Code 2015)?
The Council is not required to publish tender documents under an open
license (as required by the Local Government Transparency Code 2015). It
is required to publish the following procurement information on a
quarterly basis -
Local authorities must publish details of every invitation to tender for
contracts to provide goods and/or services with a value that exceeds
£5,000. For each invitation, the following details must be published:
· reference number
· title
· description of the goods and/or services sought
· start, end and review dates, and
· local authority department responsible.
Public data should be published in a format and under a licence that
allows open re-use, including for commercial and research activities, in
order to maximise value to the public.
The most recent Open Government Licence published by the National Archives
should be used as the recommended standard, this is not a mandatory
requirement but the Government recommends that “local authorities publish
data in three star formats where this is suitable and appropriate,
alongside open and machine-readable format, within six months of this Code
being issued”.
One star Available on the web (whatever format) but with an open license
Two star As for one star plus available as machine-readable structured data
(eg. Excel instead of an image scan of a table)
Three star As for two star plus use a non-proprietary format (eg. CSV and XML)
Four star All of the above plus use open standards from the World Wide Web
Consortium (such as RDF and SPARLQL21)
Five star All the above plus links an organisation’s data to others’ data to
provide context
You will find this information on the Councils website here:
[1]https://www.westsussex.gov.uk/about-the-...
What steps will you take to ensure that the access to the tender
opportunity data you publish meets the requirements of an open license,
and is available without blocking or restriction by yourselves or any of
your partners in the future (as required by the Local Government
Transparency Code 2015)?
As above the Local Government Transparency Requirements do not require us
to provide access to tender opportunities, only to publish on a quarterly
basis information relating to our procurements as detailed in sections 31
and 32.
You will find this information on the Councils website here:
[2]https://www.eastsussex.gov.uk/business/d...
What steps will you take to ensure that all of the tender opportunity data
you publish is available on Contracts Finder (as required under the Public
Procurement Regulations)?
All tender opportunities which fall within the requirements of the Public
Contracts Regulations including below threshold tender opportunities are
published on Contracts Finder, this is facilitated automatically by the
Council e-tendering platform. The information published complies with the
requirement of the PCR to publish at least the following:—
a) the internet address at which the procurement documents are
accessible;
b) the time by which any interested economic operator must respond if
it wishes to be considered;
c) how and to whom such an economic operator is to respond; and
d) any other requirements for participating in the procurement.
And for below threshold tender opportunities:
a) the time by which any interested economic operator must respond if
it wishes to be considered;
b) how and to whom such an economic operator is to respond; and
c) any other requirements for participating in the procurement.
What steps will you take to ensure that all of your tender opportunity
data is published to Contracts Finder within the 24hrs (as required by the
Public Procurement Regulations)?
Our tender opportunities are published to Contracts Finder within 24 hours
in accordance with the Public Contracts Regulations, this is automatically
facilitated by the publication of opportunities on the Councils
e-tendering platform.
What steps will you take to ensure that you publish explicit links to the
page that hosts your tender opportunity documents to Contracts Finder (as
required by the Public Procurement Regulations)?
The Council currently complies with the requirements to publish tender
opportunity information to Contracts Finder. The Public Procurement
Regulations 2015 state that for above threshold procurements :
The information to be published on Contracts Finder shall include at least
the following:—
a) the internet address at which the procurement documents are
accessible;
b) the time by which any interested economic operator must respond
if it wishes to be considered;
c) how and to whom such an economic operator is to respond; and
d) any other requirements for participating in the procurement.
The requirement to publish the internet address does not apply to below
threshold procurements.
All above threshold tender opportunities published by the Council include
the internet address ([3]https://www.sesharedservices.org.uk/esou...)
however we note your request for easier access to tender opportunities and
will be using the following link in future
([4]https://in-tendhost.co.uk/sesharedservic...) which
shows all opportunities available to bidders from Councils using the SE
Shared Services Portal.
I hope that this answers your enquiry. If you believe that the County
Council has not complied with the FOI Act in responding to your request,
you may ask for an internal review. If you wish to do so, please set out
the grounds of your appeal in writing to:
Philip Baker, Assistant Chief Executive, East Sussex County Council,
County Hall, St Anne’s Crescent, Lewes, East Sussex. BN7 1UE.
or by email to him at [5][email address]
Please quote the FOI reference number in any communication regarding this
particular request.
If you are not content with the outcome of the internal review, you then
have the right to apply directly to the Information Commissioner for a
decision. Generally, the Information Commissioner cannot make a decision
unless you have exhausted the County Council’s internal review procedure
as described in the previous paragraph. The Commissioner can be contacted
at: Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF. Tel: 0303 123 1113. [6]www.ico.org.uk
Yours sincerely
Jeremy Coleman
Customer Information Officer
East Sussex County Council
Communities, Economy and Transport
W1D, County Hall
St Anne’s Crescent
Lewes
East Sussex BN7 1UE
Phone: 01273 482913
Fax: 01273 481208
email: [7][East Sussex County Council request email] web: [8]www.eastsussex.gov.uk/foi
P please consider the environment - do you really need to print this
email
Copyright and Re-Use of information
1. Providing you with documents under the Freedom of Information Act does
not give you an automatic right to re-use those documents in a way that
would infringe copyright – for example by making multiple copies, or by
publishing / issuing copies to the public.
2. Copyright in the information is owned by East Sussex County Council
and/or its contractor(s) unless otherwise stated. Brief extracts of the
material can be reproduced under the “fair dealing” provisions of the
Copyright Design and Patents Act 1988 (S.29 and S.30) for the purposes of
research for non-commercial purposes, private study, criticism, review and
news reporting.
3. We do not give permission for this information to be used for the
purposes of direct marketing.
4. If you wish to use this information then, in accordance with the
Regulations on the Re-use of Public Sector Information 2015, you must
first ask our permission. Such re-use may or may not involve the granting
of a licence and the application of a Fee.
This message is intended for the use of the addressee only and may
contain confidential or privileged information. If you have received it in
error please notify the sender and destroy it. You may not use it or copy
it to anyone else.
E-mail is not a secure communications medium. Please be aware of this
when replying. All communications sent to or from the County Council
may be subject to recording and/or monitoring in accordance with
relevant legislation.
Although East Sussex County Council has taken steps to ensure that this
e-mail and any attachments are virus free, we can take no responsibility
if a virus is actually present and you are advised to ensure that the
appropriate checks are made.
You can visit our website at http://www.eastsussex.gov.uk
References
Visible links
1. https://www.westsussex.gov.uk/about-the-...
2. https://www.eastsussex.gov.uk/business/d...
3. https://www.sesharedservices.org.uk/esou...
4. https://in-tendhost.co.uk/sesharedservic...
5. mailto:[email address]
mailto:[email address]
6. http://www.ico.org.uk/
7. mailto:[East Sussex County Council request email]
8. http://www.eastsussex.gov.uk/foi
We work to defend the right to FOI for everyone
Help us protect your right to hold public authorities to account. Donate and support our work.
Donate Now