The government wants quick public sector IT savings, yet the present procurement law conflicts with that goal. So what's the way forward, asks lawyer Mark O'Conor.
In meeting rooms across the UK, heads of procurement, commercial directors, their consultants and lawyers are asking the same question: "Why can't we just change procurement law?"
In a time of moratorium, spending cuts and the need to make IT procurement quicker, cheaper, better and greener, the procurement law question is the elephant in the room in most public sector discussions. Figures vary, but a recent study by the IoD claimed that "poor procurement" was costing the UK public sector £15bn a year.
So why is the procurement law a problem? The law as it stands means public sector contracts for goods and services must follow the procurement rules, which require: a formal advert at the European level; set timeframes for the receipt of expressions of interest; mandated competition; and detailed rules and case law that states what criteria can be applied when evaluating the bids received.
Demands of the procurement process
All these requirements add up to a procurement process that some say equates to best practice and that others claim is highly process-driven, costly and time-consuming.
Meanwhile, the new government has acted swiftly to stop potentially unnecessary projects by imposing a moratorium on projects over £1m and requiring the buyer-departments to seek approval to continue.
But at the same time, there is a need to save money quickly, to rationalise the public sector IT estate - for example, by combining existing datacentres - and to ensure the UK does not fall behind as a nation using leading-edge technology, available for inward foreign investment.
These competing pressures increasingly crystallise around issues of procurement law. Put simply, the law as it stands doesn't allow us to do what the government wants us to do.
Difficulties of altering legislation
So why can't we change procurement law quickly? It's partly because of the way European legislation is made and implemented that makes the law very difficult to amend.
To avoid government - or parts of it, at least - grinding to a halt, what can we do at a time when...