In 2015, the ICO suggested a ‘soft measures’ approach as one solution to the challenge of increasing the transparency of outsourced public
services. 83 We said that matters could be improved through better contracts, transparency by design, making standard terms more fit for
80 Institute for Government. Gavin Freeguard. Gaps in government data. Five things the UK Government should publish. September 2018 p. 4. URL:
https://www.instituteforgovernment.org.uk/sites/default/files/publications/gaps-govt-data-final.pdf
81 Letter from Mark Fox, Chief Executive, Business Services Association to Rt Hon David Lidington MP. 26 January 2018. URL: http://www.bsa-org.com/wp-content/uploads/2018/03/David-Lidington-Cabinet-Office- 26.1.18.pdf
82 House of Commons. Public Administration and Constitutional Affairs Committee. After Carillion: Public sector outsourcing and contracting. Seventh Report of Session 2017-19. 3 July 2018 p.41 URL:
https://publications.parliament.uk/pa/cm201719/cmselect/cmpubadm/748/748.pdf
83 See note 11.
purpose and legislative change. We believed that these measures could improve transparency but cautioned that we would consider reporting to Parliament if there was “no significant progress”.
In gathering evidence for this report, we revisited our roadmap discussion document of 2015 and considered whether we do now have better
contracts. We said that there was scope for improving transparency requirements in standard contract terms, including a requirement for proactive publication of certain information such as the contract itself and performance against KPIs. We advocated earlier consideration of access to information at the start of the contracting process. Despite our
recommendations, we have found no evidence to suggest that contracts have significantly improved in the way we suggested they should. 84 The Model Services Contract (MSC)85 is a best practice document
published by the Crown Commercial Service (CCS) that public bodies are advised (but not obliged) to use when procuring services valued above
£10 million. The first version of the Government’s MSC was published in April 2014. Subsequent developments have resulted in the latest version in May 2016, which includes a clause entitled Transparency and Freedom of Information (the transparency clause).
To assess implementation, we tried to obtain copies of contracts valued above £10 million, published after May 2016, to review whether the transparency clause was used. After rigorous searches across UK public procurement portals that were open and accessible (ie did not require registration or subscription), we established there were no published contract documents that contained the transparency clause.
To assess the take-up of transparency clauses in contracts other than the MSC, we planned to consider a sample of final contracts. This proved to be more difficult than expected. Again, relying on open and accessible portals only, from around 43,000 tenders and contract notices published after May 2016, we identified almost 500 tenders with documents
attached. From these, we found 55 final contracts, yielding a published contract rate of only 11%.86
Positively, most of the sample contracts did include transparency clauses.
However, we have explained that a fundamental problem when dealing
84 See Annex 1.
85 URL: https://www.gov.uk/government/publications/model-services-contract
86 See Annex 1.
with requests for information about outsourced services is deciding whether information is held on behalf of a public authority. This can be very difficult to do when contracts do not give the right level of detail. In the 55 contracts we found on open portals, there was no evidence that the parties had specified and agreed what information would be held on behalf of a public authority in the event of an information request. 87 It is positive that the CO is currently considering the publication of
selected KPIs.88 However, the Government has not yet improved standard contractual terms to include requirements for the proactive publication of information that supports transparency, such as the contract itself and performance against KPIs as we recommended. It is not clear how proposals to publish KPIs would be monitored or enforced. In our view, publishing selected KPIs would not provide the necessary level of
accountability. As stated earlier, FOIA and the EIR significantly enhance our democracy because the legislation rebalances power and gives people enforceable rights to access the information they want to see, not only what is made available to them.
The draft National Action Plan for Open Government 2018-2020 (NAP)89 includes a Government proposal to improve compliance with guidance about publication of contract documents and to introduce additional metadata fields in Contracts Finder to indicate specific types of contract terms (eg use of a transparency clause).90 It states that although
government guidance calls for contract documents to be published, few local authorities proactively disclose the text of their contracts and associated procurement data is often provided through third party platforms that do not use the Open Contracting Data Standard (OCDS). 91The Government says that although there is increasing compliance with the requirement to publish contract opportunities and
87 See Annex 1.
88 Public Technology.net. Government database to track KPIs of top contracts in post-Carillion shake up. 7 November 2018 URL: https://www.publictechnology.net/articles/news/government-database-track-kpis-top- contracts-post-carillion-shake
89 UK Open Government Network. Draft for public consultation. UK National Action Plan for Open Government 2018-2020. P. 18 URL: https://www.opengovernment.org.uk/2018-2020-open-government-action-
plans/background-info-for-the-2018-2020-open-government-national-action-plan/public-consultation-on-the- draft-of-the-uk-national-action-plan-for-open-government-2018-2020/
90 As note above P. 22
91 As note 89. P. 18
awards through Contracts Finder, there remain “data gaps” and limitations. 92
The commitments in the draft NAP are also positive, but the limited publication of contract documents and the limited enforcement and monitoring of their contents clearly highlights the inadequacy of using contracts as the primary means of supporting transparency and
information access. Inadequate and inaccessible contracts persist despite a range of parties highlighting these defects over a lengthy period of time.
Notably, the 2013-2015 NAP included a specific commitment to:
“…take steps to ensure transparency about outsourced services is
provided in response to freedom of information requests, by encouraging the use and enforcement of contractual provisions to maintain the levels of transparency provided by the Freedom of Information Act 2000”.93 It is clear that a ‘soft measures’ approach is insufficient and we do not believe that contracts are likely to resolve the problems we now face. If anything, the drive is to make contracts simpler and shorter because the longer and more complex they get, the harder they are to understand and to enforce.94 It is the right time to consider another option. FOIA and the EIR are existing, ready-to-use tools that have a role to play in creating the transparency and increased accountability that is urgently needed in public sector outsourcing.