Procurement law is hobbling the public sector IT agenda

It's a deadweight on the government's IT savings plans...

...IT projects are caught by the moratorium, the Cabinet Office's Efficiency and Reform Group is seeking to renegotiate with the 19 main tech suppliers to government and the normal business-as-usual requirements of departments need to continue?

In particular, what is the solution to existing contracts running out through circumstance rather than bad planning? Let's examine the possibilities.

Increased appetite for risk
If there is an increased appetite for risk, how might that play out? Could we at one extreme ignore procurement law? The answer is clearly no.

It would be a brave department and senior responsible owner who took the risk of challenge head-on, particularly without any guidance as to what risks might be acceptable, and without any underwriting of that risk from the centre.

Instead, might it be acceptable to seek short-term extensions to contracts, even where the advertised likely term has been exhausted?

Certainly the risk of challenge is increased where a procurement has started and then been paused. Those bidders who were already taking part in the competition will have knowledge of the intended procurement process, the old agreement that is expiring, and the time pressures. They might therefore be best placed to cry foul if the contracting authority extends its existing agreement.

Changes in procurement practices
Is it therefore time for fresh thinking? If we can't change procurement law in the short term, can we change procurement practice? Or more, can we act on that appetite for risk? There are any number of candidate changes in approach, some of which are less serious and achievable than others.

If there is a need for speed, then could contracting authorities agree shorter procurement timeframes - perhaps by agreement with bidders, so that they cannot later complain that they were disadvantaged?

How about also brokering agreement with industry a set of standard terms in the way that the Central Computer and Telecommunications Agency used to do with the z series in the early 1990s? This approach could mean that negotiation times are reduced so that the negotiation is merely around price and level of service.

Getting more outlandish - how easily could the currently low thresholds be amended? Could procurement law be left as is but the thresholds raised to allow more activity under the procurement law radar?

Let's finish with a nice idea that won't work. If IT is becoming commoditised, and if the consumption of IT is moving onto a subscription or utility basis, can IT be reclassified as a utility for procurement purposes, and thus subject to far higher thresholds? Unlikely, but words spoken in jest...

Mark O'Conor is a partner in the intellectual property and technology group at law firm DLA Piper, London. He is also a member of the Commercial Strategy Workstream for the Cabinet Office's G-Cloud Programme. You can read more on the subject of procurement law and the IT agenda on the DLA Piper website