On Tuesday 28 June, we held our second procurement thinkSpace in partnership with Edinburgh City Council. The main aim was to bring about meaningful change – not just a talking shop.
The way in which services are bought has huge implications for people’s lives. The language of procurement is dry and technical, and bound by the law. The language of outcomes for people is perhaps soft and mushy in comparison, but certainly no less important. It’s no wonder that these two worlds don’t easily unite, but to achieve the best for people, unite they must.
Procurement has become a central issue for EVOC and the third sector in general. We held a thinkSpace event ‘Tenderising Tendering’ last year, which started to explore these issues. A debate within the Finance and Resource Committee late last year demonstrated in practice what can be lost when simplistic procurement decisions are made.
The decision making process seems often to be dominated by minimising the risk of litigation from disgruntled providers, and disregarding risks to service users. ‘EU legislation’ is the ultimate end to the conversation, and you’d be forgiven for thinking that EU procurement rules were established to limit options rather than facilitate the best possible outcomes for people. However, Edinburgh City Council does recognise the need for change, and new government guidance increases the options available.
It was interesting timing, being held in the European Room at City Chambers four days after Brexit was announced. Our speaker Robin Fallas from MacRoberts LLP was clear that there are no immediate changes on the horizon, not least because the EU legislation has been transposed into national law.
We had the benefit of expertise from a great range of speakers to describe the landscape – we’ll post a summary of this shortly. The workshop exercise allocated attendees different points of view – i.e. Council Chief Executive, Councillor, member of the public – and asked us to consider the range of procurement options and how each would impact on their interests. It provoked some interesting discussions, which could have benefitted from a whole day event. The conversations made clear that there is a complex set of considerations and risks to balance. What was particularly stark is that service users do not naturally find themselves at the centre of these decisions, and yet we all know that their interests should be.
Very few attendees were aware of the different options available, and this is probably why procurement decisions end up being so cut off from other parts of the process. Only procurement professionals know about procurement and naturally they are not experts in the subject of the service being procured. We need to work together to find ways to blur these divisions – we need clearer guidance on which options exist and what each entails in practice, and also to involve procurement officers earlier in the conversations about the broader services in question.
The most important message that came out of the day for me was that the new framework offers statutory bodies flexibility and discretion in procurement decisions. Procurement lawyer Robin Fallas echoed this message, telling the audience that procurement rules are rightly there to ensure an open, fair and transparent process, not to limit the positive outcomes of the procurement exercise. Competitive tender is not always the best way to evidence best value. When there are explicit reasons for doing things differently, in the specific interests of service users, this is certainly possible.
The other clear message was that the third sector needs to be involved in decision making rather than a passive recipient of a pre-determined process. People are tired of a positive service design process leading to a closed conversation with procurement officers where there is only one answer that can result – ‘it has to be competitive tender because of EU legislation’.
We want thoughtful decisions to be made, and conversations to be open and transparent. Hence the main action to come out of the event – the decision to use Annex 6 as a basis for designing a flow chart governing how these decisions should be informed in future – outlining who should be involved and which factors should be taken into account.
Where to now? We have agreement that things need to change and that we need to design the new system together. Helping to put together a flowchart isn’t everyone’s idea of success but we hope that in this instance it fits the bill.
While things look promising in the medium term we shouldn’t ignore the time it will take for positive change to kick in. There are plenty of procurement processes underway right now which are not showing signs of having learnt from any mistakes in the past, and so while feeding into changing the wider system in the medium term, we are also working to flag up current processes which need to benefit from these discussions here and now.