September 2010

Readers will probably be aware that the Coalition Government has initiated a transparency drive in government. The original announcement can be found here.

In summary, the new requirements are as follows:

• All new central government ICT contracts to be published online from 1 July 2010; this requirement applies to central Government including departments, including their agents and agencies, all Non-Departmental Public Bodies (NDPBs), National Health Service (NHS) bodies and trading funds.
• All new central government tender documents for contracts over £10,000 to be published on a single website from September 2010; this requirement applies to central Government including departments, including their agents and agencies, all Non-Departmental Public Bodies (NDPBs), National Health Service (NHS) bodies and trading funds.
• All new central government contracts to be published in full from January 2011.

On Friday, the OGC published this guidance for public bodies as to how they should comply with the first two of these measures; guidance on the third is to follow.

Questions have been raised about how this transparency regime fits together with other obligations around confidentiality, such as (1) the duty in Regulation 43 of The Public Contracts Regulations 2006 to keep confidential those matters which a bidder has reasonably designated as confidential, and (2) duties to maintain confidentiality under general duties in law. We are analysing the guidance to assess the extent to which it answers these questions and will post an update in due course.

From an initial scan, the guidance does contain scope for redactions and there are exemptions from the duty to disclose; these are based on the exemptions set out in the Freedom of Information Act ("FOIA"). It also includes a proforma "transparency clause" for use by public bodies in contracts with IT suppliers, in which suppliers agree to publication of the contract save for those elements which would be exempt from disclosure for the purposes of FOIA.

IT Contracts must be published within 20 days of the end of the standstill period (assuming no legal challenge is brought during that period). IT Contracts can be published on department websites, or, if this is impossible, it may be possible to use www.data.gov.uk.

Tender documents are to be published with each phase of the procurement at www.businesslink.gov.uk/transparency/procurement and the guidance states department‟s documents should be released under the “copyright” terms and conditions which appear on the www.data.gov.uk website. This will license the public to reuse the documents provided they cite the source and do not misuse or deliberately mislead.

Public bodies are required to provide monthly reports on the implementation of these measures to the Efficiency and Reform Group, using a template provided.