The rules of the game

This article is part of a series about large-scale, collective, public-sector procurement. It is written mainly for the technical and managerial people responsible for these procurements. The overall aim of the series is to describe the obstacles in the way, and show how to overcome them. It uses laptops as an example, but the same ideas could apply to other categories.

A previous article set out the scaffolding of the topic, in six parts. This part is the third: about the legal constraints that apply to a public sector procurement. This is after we consider the technical requirements and the broader user needs; and before we take on the problems of collective action, the economic case, and the organisational arrangements to make it all come together successfully.

A procurement is a competition between sellers to win a contract to supply something. Competitions usually take place under a set of rules. In our case, unlike a private-sector procurement, the rules are set by legislation. This has a powerful effect. When you are preparing the requirements, you need to think, not “will I be able to explain this to my team?”, but “will I be able to justify this in court?”, and what are the consequences if I get it wrong.

The rules of the game are in three places:

  • Primary legislation in the Procurement Act 2023
  • Secondary legislation contained in the Procurement Regulations 2024
  • Guidance from the Cabinet Office.

This article is not going to cover the ins and outs of the legislation. Instead, it will focus on the main elements that affect the way we develop the requirements for this type of large-scale procurement.

You might assume the rules are set up to protect the interests of the organiser of the competition (the public-sector body as buyer or “contracting authority”). But that is not the case. In many ways, the rules are set up to protect suppliers. The legal framework places additional obligations on the buyer, not the supplier.

We already determined that, to achieve the best value, we should express our requirements in as open, or product-neutral, a way as possible. We want to try to get behind the marketing terms, or the different technologies a manufacturer may use to achieve a performance or functional characteristic. But the obligation goes considerably further than this:

  1. Firstly, we must allow all suppliers to compete fairly
  2. Secondly, we must express requirements in a certain way, and may not express them in others.

These two factors lead us to a way of working that I will come on to at the end.

Fairness

Section 12.1(c) ” In carrying out a covered procurement, a contracting authority must have regard to the importance of….sharing information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions”.

This creates a duty towards suppliers. But I wonder how far we are expected to go in allowing a supplier to understand something. That seems quite open-ended. Suppose they don’t want to understand it because it is to their advantage not to.

Section 12.2 “In carrying out a covered procurement, a contracting authority must treat suppliers the same unless a difference between the suppliers justifies different treatment.”, and 12.3 “If a contracting authority considers that different treatment is justified in a particular case, the authority must take all reasonable steps to ensure it does not put a supplier at an unfair advantage or disadvantage.”

So we need to treat all suppliers the same; but we may not yet know who they all are. How can we then treat them all the same? We would need either to engage with all of them, or with none of them. I can see the sense of this once a formal procurement has opened, but it seems very difficult to do before that.

The Act says that we may carry out a “preliminary market engagement” with suppliers.

Section 16.1 “Before publishing a tender notice in respect of a public contract, a contracting authority may engage with suppliers and other persons for the purpose of—
(a) developing the authority’s requirements and approach to the procurement;
(b) designing a procedure, conditions of participation or award criteria;
(c) preparing the tender notice and associated tender documents;
(d) identifying suppliers that may be able to supply the goods, services or works required;
(e) identifying likely contractual terms;
(f) building capacity among suppliers in relation to the contract being awarded.”

This makes obvious sense if we decide to buy something out of the blue. We investigate the market, identify suppliers, and open a competition. But an organisation buys laptops year in and year out. It has established relationships with existing and potential suppliers. The relationship may include, for example:

  • Attending new product launch events
  • Evaluating new products
  • Asking questions about new product features
  • Discussing different procurement models.

How are we to do this with all potential suppliers equally? If we cannot, how are we to balance it up to make sure that there is no unfair advantage to the suppliers we engage the most with? And why should they engage with us, if the advantage they gain by doing so must be removed in the procurement?

This all sounds as though it should be a code of practice, “as far as is practical and proportionate”. But it is not. It is a legal obligation.

And what does “unfair advantage or disadvantage” even mean? Suppose I learn that one manufacturer can embed a certificate in a device to verify that the components of the laptop have not been altered since manufacture. Suppose I think that is a very good idea, to combat the heightened risk of tampering, and I add it to my requirements. Suppose then that another manufacturer tells me they don’t do that, and for a good reason. Are they unfairly disadvantaged? They might say: you have been listening to Supplier X but you have no evidence this is an effective solution. Instead we use another mechanism to ensure there is no tampering. What then?

Technical specifications

Section 56 Technical Specifications covers the terms we may use to define our requirements.

Section 56.2 says: “The procurement documents may not refer to design, a particular licensing model or a description of characteristics in circumstances where they could appropriately refer to performance or functional requirements.”

Section 56.7 adds: “Unless the contracting authority considers it necessary in order to make its requirements understood, the procurement documents may not refer to a particular—(a) trademark, trade name, patent, design or type, (b) place of origin, or (c) producer or supplier.”

Section 57.8 adds: “If the matters mentioned in subsection (7) are referred to, the procurement documents must also provide that tenders, proposals or applications demonstrating equivalent quality or performance will not be disadvantaged.”

This sounds reasonable enough if it were a code of practice. It corresponds to our earlier conclusion that we should express requirements in as product-neutral a way as possible. But this is a legal requirement, not guidance.

So let’s list some of the properties used by manufacturers to describe a laptop:

  • Laptop
  • Clamshell
  • Processor make and model (e.g. Intel Core 5)
  • Thunderbolt
  • Touchpad
  • TPM
  • WUXGA, PixelSense or Liquid Retina
  • LCD panel
  • Touch screen
  • Anti-glare
  • Low blue light
  • HDMI
  • DisplayPort
  • SSD
  • DDR5
  • Wi-Fi 7
  • HDR camera
  • Long life battery
  • Fingerprint reader
  • Backlit and spill-resistant keyboard
  • MIL-STD-810H.

We know what these are, but would you like to try to express them as performance or functional requirements, as the Statute says we should? It is quite a challenge. So, as the contracting authority, we have a problem. We may not use terms that everyone understands, if they could instead be given as performance or functional requirements. We must also accept an “equivalent” product. But, unless we can define the performance or functional characteristic, how can we know if it is equivalent or not?

Subsections 3-6, and 9, cover the use of standards. They refer to:

  • UK standards
  • Internationally-recognised standards
  • Equivalent standards from another state.

For standards set by national and international standards bodies, such as ANSI, ISO and IEC, or the International Bureau of Weights and Measures, the meaning is clear. But, at least for technology, many standards are set either by industry associations, independent third parties, or government agencies. There are often several organisations covering similar ground. Is a specification developed by a U.S. not-for-profit organisation like the Trusted Computing Group (TCG) an “internationally-recognised” standard, or not?

The solution is to unbundle each of these terms into what we actually require, in performance or functional terms, and what we can verify. We saw this in the previous article about requirements. This is an example for the display: first the manufacturer’s description; then the product-neutral requirement.

Specification

ItemSpecification
Size14″ diagonal
Aspect ratio16:10
ResolutionWUXGA (1920×1200)
TouchOn-cell touch
TypeLCD
Brightness400 nits
Contrast800:1
Colour gamut100% sRGB
Viewing angleUltra-wide
CoatingAnti-glare
Hardness[not given]
Blue lightLow blue light
PrivacyPrivacy Guard

Requirements

ItemRequirement
Size13.50″ to 14.49″
Aspect ratio[not necessary]
Resolution (native hardware)Physical grid of 1920 horizontal and 1200 vertical pixels [minima]
TouchMust respond to touch contact at three or more points simultaneously
Type[not necessary]
Brightness400 cd/m2
Contrast (static ratio)800:1 in white luminance to black luminance
Colour gamut100% sRGB
Viewing anglePlus or minus 80% from the perpendicular with contrast ratio > 10:1 in horizontal and vertical angle
ReflectionReflected luminance < 30 cd/m2 at 500 lux ambient illumination
Hardness3H under ISO 15184 test conditions
Blue light[not required]
PrivacyDevice has a user-selectable option in hardware to reduce the viewing angle

Rather than go into the details of each item, here are a few general pointers:

  • Viewing the product specifications of different manufacturers, we can see differences that we need to accommodate. For example, 14″ is a common screen size, but Microsoft makes a laptop with a 13.8″ screen, and Apple one with a 14.2″ screen. We would be excluding them unnecessarily unless we had a specific reason why only a screen of exactly 14″ would do.
  • Some of these requirements may seem overly pedantic. But the manufacturers themselves have to deal with these criteria when they design the device and select components. So a close working relationship with manufacturers can help us define our requirement. We don’t need to depend only on their published specifications. We can also look at the component datasheets themselves, and we may use those as a source for verification that a requirement is met.
  • Elsewhere in the requirements we will state that a device much achieve Windows Hardware Compatibility Programme (WHCP) certification. The WHCP specification defines in detail what a device must do to support the relevant features of Windows. For example, it has an extensive System specification for a touch digitizer, which then extends into a Component specification. We do not need to define exactly how a screen responds to touch, because the WHCP does it, provided that the screen responds to touch at all.

Conclusions

This might all seem a bit much. We know roughly what laptops are suitable. We know their specifications. We want to say: “give me a price for one like that”. But I look at it another way. First, this is a very large procurement, with a value in the £ hundreds of millions and potential benefits of £ tens of millions. We might not be used to doing it this way, but that doesn’t mean it is wrong or unnecessary. Second, we are doing a public-sector procurement, and the legal framework exists to provide wider public benefits and not only value for money.

In later parts of this series we will take a look at the economic case, and how to organise ourselves to carry out the procurement effectively.

User Needs

This article is part of a series about large-scale, collective, public-sector procurement. It is written mainly for the technical and managerial people responsible for these procurements. The overall aim of the series is to describe the obstacles in the way, and show how to overcome them. It uses laptops as an example, but the same ideas could apply to other categories.

A previous article set out the scaffolding of the topic, in six parts. This part is the second: about the broader user needs that apply in a procurement. It comes after we consider the technical requirements; and before we take on the legal constraints, the problems of collective action, the economic case, and the organisational arrangements to make it all come together successfully.

We all know that a requirement should be based on a real user or business need. A requirement might be for a Secured-core PC, but that would be to meet the user need for what the NCSC describes as “enhanced protection”. The Government Digital Service (GDS) way is to be explicit about user needs, to avoid requirements that are only a regurgitation of specifications. In my experience, organisations usually have a good implicit understanding of their user needs. But making those explicit allows them to be challenged and perhaps modified if there is a better way to meet the need.

I use a form to document the user needs:

IndexIn my role asI needSo that
A2Knowledge workerA reasonably portable laptopI can carry it comfortably between home and office, and occasionally elsewhere
A6Knowledge workerA device that connects to power and display over a common connectorI do not have to carry a charger, cables and adapters
B2Cyber security managerAn inventory of all devices and their userWe comply with the NCSC Cyber Assessment Framework
B4Cyber security managerControl of all telemetry dataIt remains in a known jurisdiction
C1Digital workplace service ownerA standard device and OS configurationSupport costs are kept down
C3Digital workplace service ownerA clean OS image from the OEMI do not have to re-image the device before configuring it
D1Line managerA device issued promptly to a new joinerThey can start work immediately
D7Finance managerTo procure devices in Q4I can use the remaining budget

We can debate what the correct user need is, but only because we have made it explicit.

When we do this, we raise to the surface some very important considerations that may not be obvious to an outsider looking at the technical specification of the device alone.

In my experience, most end-user computing (or digital workplace) service owners want to achieve a degree of standardisation in the service they provide to staff. This is evident in many ways:

  • The same videoconferencing equipment in meeting rooms
  • A list of approved software
  • A standard configuration of the device, using device configuration profiles
  • A single user identity for different services
  • Etc.

Another standardisation is in the make and model of devices: laptops, phones, monitors. The service is easier to provide well and cost-effectively when the devices are standardised.

A crude version of this is the mass fleet replacement on a multi-year cycle. The devices start out all the same, and we top up with the same or similar model during this version of the desktop service.

With an evergreen Windows OS (well, almost!) and applications, the mass fleet replacement has become less common, and a rolling programme of replacement more common. But, if we now do that, how do we keep the devices reasonably standard over an extended period? If we use a product-neutral requirement to achieve the best value, the risk is that we will obtain a different device from each contract.

A brave manager might decide that standardisation is overrated; and that the organisation could work perfectly well with a selection of different devices. But I am uncomfortable with this idea of changing the business need to suit the procurement. For the moment, I think the procurement should meet the need, although by all means an organisation could experiment.

Mainstream business-grade laptop models generally have a 12–18 month lifecycle, driven largely by the lifecycle of the processor models they use. During that lifecycle, the OEM generally keeps the chassis and component specification the same. The next-generation model will generally (not always) be an evolution, with a similar chassis and updated components.

To maintain a degree of standardisation, we need to keep the same model, or at least the same type of model, for as long as possible.

But we will not want to buy the whole quantity at once and put them into stock. If we do that, the OS and firmware will be out-of-date by the time we take a device from stock to use it. So we will want them supplied as needed, direct from the manufacturer or distributor.

To meet the user need for standardisation, we will need to:

  • Buy early in the model lifecycle
  • Commit to buying the same model over an agreed period, rather than holding the whole quantity in stock
  • Create a contractual framework for the next-generation upgrade.

This might sound unnecessarily complex, but the alternatives are:

  • A spot purchase of a different model at different times
  • Abandoning the product-neutral requirements altogether.

So I think we can see that making the user needs explicit helps us to discuss, between the commercial, technical and other interests, how best to meet them and what the resulting procurement looks like. And, in doing so, we discover that we are not really buying laptops at all. We are buying a reliable supply of laptops.

Next: the rules of the game.

The requirements

This article is part of a series about large-scale, collective, public-sector procurement. It is written mainly for the technical and managerial people responsible for these procurements. The overall aim of the series is to describe the obstacles in the way, and show how to overcome them. It uses laptops as an example, but the same ideas could apply to other categories.

A previous article set out the scaffolding of the topic, in six parts. This part is the first: how to express the technical requirements for any large, competitive procurement. This is before we bring in other considerations, including broader organisational needs, the constraints of public-sector procurement and the added complexity of collective action.

Why do we even need an article about requirements? Surely organisations are well-practiced in buying laptops. They must know what their requirements are. And indeed they do: organisations already make statements of requirements and use them to conduct procurements. But these requirements may not be as open and competitive as they could be. The reason is that expressing a requirement in a way that permits the widest possible competition is a considerably more difficult task than it first appears.

I start with the assumption that we want to achieve the best possible value, and that this is most likely to be achieved by making the procurement open to as many sellers as possible, with as wide a range of products as possible, provided they meet our requirements. So this article is about how to express the requirements for this competition.

Let’s imagine as a starting point that I have a selection of laptops, with different specifications, for evaluation. From these I have selected one that is the best fit for the organisation. I have the full specification for it, and a rough idea of the price, which I think is acceptable. I am hoping to be offered a substantial discount for contracting to buy a large quantity. I could just look for tenders from different resellers for this specific model, but I think I may get even better value if I open the competition to similar models from different manufacturers. So the next step is to remove the manufacturer and model from my requirements, and consider only the important properties of the model.

With this in mind, I might come up with something like:

  • Laptop form factor
  • Intel Core 5 320 processor
  • 14″ screen size
  • WUXGA display
  • 16 GB RAM
  • 512 GB SSD
  • Windows Pro Edition.

I need to use a specific example here, but this article is not about choosing a good laptop. It is about the logical development of a set of requirements for whatever laptop we think we want to buy.

But if I issue these as the requirements for an open procurement, I am saying in effect that I will accept the lowest possible specification meeting these, and only these, requirements. Any manufacturer, including those I know less well, could offer any product provided it meets only these criteria, and I would be obliged (though perhaps not legally contracted) to accept it.

When I look at the model specification, I can see that there are many more variables. Am I really saying I care about none of them: battery life; hard drive speed; Wi-Fi performance; physical connectors; camera quality? Manufacturers have spent a great deal of time and money offering customers options. On what basis would I decide they are all irrelevant and that I will accept the lowest possible offering except for the few I have specified?

So Rule No. 1 is that the statement of requirements must be complete. It must include everything we care about, and not just the things we care about the most. This is a matter of logic. The requirements do not only need to include what we want. They need to exclude anything that we do not want, even if we do not know what it might be.

If we take a single model, from a single manufacturer, there may be, conservatively, more than 45,000 technical configurations. This may seem like a high number, but these exist because different buyers want different things, and each of these represents a difference in price. As a result, if we want to achieve the best value for a given requirement, we need to state the minimum requirement for each of the variables, which may include:

  • Operating system edition
  • Processor manufacturer
  • Processor variant
  • Display properties
  • Storage capacity
  • Memory type
  • Memory capacity
  • WLAN version
  • WWAN capability
  • NFC capability
  • Camera features
  • Fingerprint capability
  • Keyboard type
  • Smartcard capability
  • Power supply capability
  • Battery capacity.

But this is for one specific manufacturer and model. If we want to extend this to other manufacturers and models, we need to accommodate the differences in their design choices. This is Rule No. 2. We need the requirements to be generic, or product neutral.

The most obvious example is the processor. In our initial requirements we gave Intel as the manufacturer and Core 5 320 as the model. But AMD and Qualcomm also make processors for Windows laptops. If we want the most open competition, we should allow these too. The most obvious way to do this is to say “or equivalent”. That seems reasonable. But equivalent in what respect: cores; frequency; efficiency (power consumption); features? Intel, AMD and Qualcomm make processors to compete, not to compare. There is no single measure of equivalence. They have different manufacturing economics, and different competitive positioning. They even run different Windows binaries, compiled for x64 (Intel and AMD) or Arm64 (Qualcomm).

The solution to this conundrum is that we need to use a generic, or product-neutral, measurement of processor performance. Now the pool of complexity gets deeper. How do we measure performance? Surely there must be some sort of industry standard? There is not. There is a range of different types of benchmarking software. Some run synthetic tests designed to stress individual components. Others run real applications with a simulated test workload. But getting repeatable results depends on using very carefully controlled test conditions. To use a benchmark score in a competitive procurement, we would need to specify what benchmarking software to use, under precise test conditions. Both the buyer and the seller would need to be able to run the same test: the seller to know what to offer, and the buyer to verify that what is offered meets the requirement.

So finally we might come to the conclusion that we should use application benchmarking software, for example SYSmark from BAPCo or Procyon from UL Solutions. We will also need to set up our own bench so that we can produce the scores that we set as a requirement, and verify the performance of the products we are offered.

This is a topic all on its own, and it covers only the processor. We also need to consider battery choices. Battery life (the runtime between charges) is a combination of many factors: the capacity of the battery itself, in Watt-hours; the workload, such as browsing, or playing video, or performing calculations; the efficiency of the overall platform; and software optimisation, to reduce performance or screen brightness when there is less charge. We need a benchmark for this too. And this is only battery life. We also need to consider the charging rate and the longevity, both of which may be described by manufacturers in different terms. And the weight of the battery will be a significant part of the overall weight, so better battery performance may tip the device over an acceptable weight limit. So we need our bench again to test the overall weight of models with different options.

Next, manufacturers are not obliged to follow the same conventions. Many typical laptop displays, for example, follow a WUXGA convention with 1920 x 1200 pixels. But they don’t need to do that. Microsoft and Apple both use a different display format. Can we honestly say that only WUXGA meets our requirement? Displays also come with different levels of brightness and contrast. Do we want the lowest specification; or something better?

And then we have more variation. IPS is In-Plane Switching, which achieves a wide viewing angle with accurate colour rendition. But IPS is only one of several technologies that may be used to achieve this. Really we want to specify the viewing characteristics, not the technology. How do we do that? We might specify the viewing angle over which contrast is greater than 10%. Some displays are described as “low blue light” while others have “Eyesafe” or “Eye Comfort” certifications. But neither Apple nor Microsoft use these terms, so do we really need them at all? Yet another characteristic is viewing privacy. A narrow field of view for security purposes can be achieved in hardware or in software. Is one better than the other? How can we describe it? And so on. For every property, we need to consider what our requirement is, and how to express it in a generic or product neutral way.

Then we come to Rule No. 3. Requirements are only useful if we can verify whether they are met. We have to imagine a seller who simply says “yes” to every requirement. How do we check? We already saw, above, that “equivalent” is not a verifiable property of a processor. Another good example of this is what we might call a business or enterprise laptop. We know what we mean: not the same as the laptop we might buy in a shop. But what exactly is the difference? We might think it is more durable. But how would we define that? We might specify a metal rather than plastic chassis. But most chassis are not pure metal. They are a combination of metal skin with reinforcements. And some are made of high-tech resin and fibre composites. In the end, we cannot use business or enterprise as a requirement, because we cannot verify it. Instead we may choose to use measurable and verifiable properties, such as:

  • Battery longevity
  • SSD longevity
  • Scratch and dent resistance
  • Drop, shock and spill resistance.

Back to the completeness rule. It may not even be possible to define everything we think we require, and therefore rule out any possible offer that we had not expected. We cannot know every configuration of every model from every manufacturer. We might choose to use some characteristics as a proxy for other attributes. But the bigger the procurement, the more important it is to control the outcome.

I hope I have done enough to show that what starts out as a simple enough requirement – “I’d like something like this” – needs to become as complete, product-neutral and verifiable as possible. We can never achieve this perfectly, because we cannot know every possible product. But the larger and more competitive the procurement, the harder we need to try.

Next: user needs.

Large-scale collective public-sector procurement

This article is about large-scale, collective, public-sector procurement. It is written mainly for the technical and managerial people responsible for these procurements. The aim is to describe the obstacles in the way, and show how to overcome them. It uses laptops as an example, but the same ideas could apply to other categories.

We start with the proposition that a buyer should be able to achieve better value with a larger volume of goods procured. Most people would think that self-evident. It is how a supermarket works. In the public sector, organisations vary greatly in size. We might assume that the larger organisations achieve, or could achieve, better value than smaller ones. Therefore we might assume that smaller organisations might also achieve better value if they procured goods collectively. And we can go on from there to assume that a collective of smaller organisations might achieve even better value if it joined forces with larger organisations.

It is obvious that this might apply, for example, to schools, NHS Trusts, local authorities and police forces. By extension the same approach might also apply to universities and charities. If it were adopted across the whole of the public sector, and across a range of product categories, then we might expect to achieve better value worth hundreds of millions of pounds a year.

But, if it is so obvious, why do we not already do it? Could it be, for example, that public-sector organisations value their autonomy more highly than the potential savings from a collective procurement? Or perhaps they have tried and it didn’t work. Or perhaps the assumption is wrong and larger organisations are not paying appreciably less than smaller and more nimble ones.

This article proposes that none of those is a sufficient explanation. Organisations do collaborate, for example through the Government Property Agency. They have tried collective procurement, successfully, in Scotland. And larger organisations do, by and large, obtain lower prices than smaller ones. Instead, the article sets out a case that achieving better value through collective public-sector procurement is much more demanding than it might first seem. It concludes that better value is achievable, but only by recognising and overcoming the obstacles.

The article only erects the scaffolding of the case. I have found that each part explodes into hidden complexity, so I have chosen to cover each part of the argument as a separate topic. Does it need to be so complex? The tidy mind dislikes complexity and tries to reduce it to simple propositions. But simple propositions can hide immense complexity. Each topic starts with a simple proposition and develops it into the necessarily more complex solution.

The first topic is the expression of the requirement. It seems simple enough to buy a laptop. Most of us have done it. Can’t we just scale that up a bit? That is, in fact, mostly what happens. Many organisations currently express their technical requirement in a few lines. Even large ones may use a spreadsheet with only 10-20 lines (although the full tender document is much larger, of course). But these are not open procurements. For the most competitive procurement, open to any seller, we need to be able to accept any solution that meets the requirements, even a solution we do not yet know of, and exclude only those that do not. This makes expressing the requirements accurately a considerably more demanding task.

The second topic is user needs. As a private individual, I can assert my requirement to be whatever I please. But a commercial buyer is trying to provide goods that will meet the overall needs of the organisation. Usually these needs are implicit, but I find it a good discipline to express them explicitly. When doing that, it becomes apparent that there are requirements beyond the technical specification of the laptop alone. Most organisations want to achieve not just a delivery of laptops, but a supply of laptops into a provisioning and support service. They might, for example, want to buy a model of laptop early in its 12-18 month lifecycle, so that the same model can be supplied for the longest period of time. These user needs also need to be expressed as requirements.

Next are the rules of the game. A public-sector buyer is constrained by statute: the Procurement Act 2023, supplemented by the Procurement Regulations 2024, and elaborated in guidance from the Cabinet Office. This is well known, but nevertheless stranger than it first appears. The State has created a legal regime such that a seller may sue a public body if the rules are not followed. In some cases the procurement may need to be run again. In others, the organisation might find itself paying damages and subject to public criticism. So the procurement needs to take account of the additional constraints imposed on it by law.

Next is the question of collective buying. If specifying the requirements of an organisation is not straightforward, then doing it collectively adds a further degree of difficulty. Even when organisations want to cooperate, they may have different requirements. Those differences may be necessary, or they may be historic. It might take time for an organisation to adapt to a new type of procurement. But, if a collective cannot demonstrate that it achieves better value at the outset, why should people join it? So there is a collective action problem, and we need a plan to deal with it.

Then there is the economic case. The question is: does it really follow that significantly better value would be achieved by collective procurement? If we knew that the margins of the industry were low, where would the better value come from? Conversely, unless there is a significant advantage for the seller, why would they sell for less? There are further more complicated arguments about security of supply, innovation, and market behaviour. In brief, we need to be able to demonstrate that there is an economic case for collective procurement, rather than assume that economies of scale will produce better value.

These are the substantive topics. Beyond this is a question about the nature of large-scale, collective, public-sector action and its limitations. If the problem is difficult but solvable, why do organisations, from health trusts to police forces, find it so difficult to do? The individual organisations may understand their own requirements very well. The difficulty may instead lie at the centre: how does an organisation recognise and make use of knowledge that it does not itself possess? This leads to a consideration of the organisational structures needed to make collective procurement work.

Next: the expression of the requirements.

Government Commercial Problems with IT Procurement

Working in IT, I come across procurement problems frequently. The root cause, it seems to me, is that government procurement rules are implicitly designed for a steady state, whereas IT projects implement change, which is inherently imprecise. These rules need a radical overhaul. The new Procurement Bill, currently (Feb 2023) going through the House of Commons, aims to do this.

Problems

What sort of problems? 1) Long delays. A procurement that might be a simple executive decision in the private sector can be a three or six month exercise in the public sector. On a project, delay has a cost. This cost often outweighs the potential benefit of the procurement process. 2) Inflexibility as requirements evolve. Sometimes you don’t know exactly what you need until you talk to suppliers. But you can’t talk to suppliers without a formal procurement process.

I cannot give specific cases, for reasons of client confidentiality. But I can highlight the areas of the procurement rules that create these problems. The intention of the public procurement policy is clear and legitimate: to achieve “the best mix of quality and effectiveness for the least outlay over the period of use of the goods or services bought”. The question is whether the rules do this in practice.

I must say at the outset, these thoughts are from a “user” perspective. I have no great knowledge of the procurement rules, only my experience in performing procurements as part of an IT project. The amount of regulation and guidance applying to procurement is vast, and I don’t know how anyone could master it. The scope is vast too: £ hundreds of billions of contracts, of every conceivable type, and ranging in value from £ billions to £10,000. I don’t believe it is realistic to try to codify the rules for this vast enterprise, but that is what the policy does.

Long delays

I led a piece of work to implement a small piece of software that integrated two different systems. There are four products that do this. It is quite a niche area, with not much published information. The value of the purchase would be small, in relation to the two systems being integrated. The products are priced by volume of usage, with annual subscriptions. There were various technical complications about integrating with the two specific systems in our case.

The obvious thing to do was to buy a few licences and learn on the job. We were not allowed to do this. The rules said that no purchase of any kind could be made without a selection process, in this case to decide which ones to trial. The public information was not sufficient to justify the selection of a single product to trial. The next obvious thing was to talk to vendors. We were strictly not allowed to do this. Talking informally to any vendor would prejudice a fair selection.

So we developed our selection criteria as best we could (based on what we could glean from the published information), and then carried out a systematic trial of all four products sequentially. The trial involved actually implementing all four products, and asking staff to evaluate their experience when using them. The experience was almost identical, as we expected.

Some of our important selection criteria were technical, for example compliance with security requirements, and licensing terms. For these, we had to ask the vendors to respond to an RFP. As you can imagine, the responses were inadequate to provide any assurance, without speaking further to the vendors.

After going through the selection process, amazingly, we had not actually completed the procurement. All the vendors sold licences through resellers, as you would expect. So, after the selection, we needed to pick a reseller. You’ve guessed it! We needed a procurement to pick a reseller to sell us the licences for the product we had selected. Fortunately, we were able to use the Crown Commercial Services framework to ask for quotes.

The end result was that we purchased a few licences for the product we expected to pick at the beginning, but many months later and at considerably greater cost than the cost of the licences.

The basic problem here is that we do not live in a world of perfect information. At the outset, we cannot know all the ins and outs of different products. Vendors design their product information to highlight advantages and hide weaknesses. Vendors do not publish real prices. Vendors do not respond to RFPs with full and honest answers to questions.

Think of it from the vendor’s point of view. Some government department wants to make a small purchase. The department invents a long and complicated process and invites them to participate. What should they do? Obviously, just send them the data sheet and the price list. Why would they go to the effort and expense of responding when the total profit if they won would be less than the cost of responding?

Inflexibility

I led a project to upgrade the technology of an existing system, the purpose of which was to enable integration with another system. Sorry if that is a bit obscure: the reason is confidentiality.

The original system was contracted for before the integration even existed. We were not allowed to select our new network supplier with the integration built in to their product. This service was not in the scope of their new contract, because no-one at the time knew we would need to do this. It would have required a completely fresh procurement of the primary product, which would have taken at least a year.

In this case we were allowed to vary the existing contract. The rules on variation are highly complex. They require a good understanding of Annex A – Regulations 72 and 73 of the Guidance on Amendments to Contracts 2016. We were allowed to vary the contract but only provided the contract used different technology to do the same thing.

This gave us a few big challenges to negotiate. One, we needed a new type of support for the new technology not provided in the original contract. Two, we needed a third party (at additional cost) to provide a service to assist in the integration.

After something like a year we had completed the integration. At this point there was less than a year to run on the existing contract. But we could not extend the contract. The rules on extension are especially severe: they are one of the “red lines” for IT procurement. So the next stage had to be a full procurement of the whole service, having just completed the transformation of the previous service.

The basic problem here is that we don’t live in a world of isolated products and services. They are all inter-related in some way. It is not possible to have perfect foreknowledge of all the ways the services might need to change in the future.

Observations

I have a few observations.

  1. Procurement rules do not take account of the cost of complying, in relation to the value obtained.
  2. They assume the availability of adequate market information to make perfect choices without speaking to vendors.
  3. They also assume vendors can and will respond with accurate detailed information about what they offer.
  4. They do not take sufficient account of the relationships with other products and services, and the way these all evolve over time.
  5. It is simply not possible to comply with the rules intelligently, without having a large and skilled Commercial department.
  6. Commercial department cannot have a full knowledge of the product or service being procured and, therefore, there will be extensive delay or bad choices made.
  7. Delay is built in to the system, and the cost of delay is not accounted for.
  8. The cost and delay of procurement means that people are incentivised to wrap up products and services into large contracts that preclude innovation and competition – the exact opposite of what is intended.

Procurement Bill

The original Public Contracts Regulation 2015 stemmed directly from the EU Public Contracts Directive. The intention was to make contracts open across Europe.

But the idea that you can regulate all procurement across all of Europe with a value of more than £138,760 (Jan 2022 threshold) seems unrealistic. Let’s say you have an organisation of 10,000 staff. Let’s say a contract might run for 5 years (printing, laptops, software etc.). The threshold means that any contract worth about £3 per member of staff per year must be subject to a full, open, procurement. Let’s say the vendor profit on the procurement is 20%, or £27,752. The procurement process will cost more than that!

The explicit aim of the current Public Procurement Policy is to obtain value for money. But people don’t need rules to enable them to obtain value for money when buying a holiday, or a car, or the weekly shopping. People will do this for themselves. What the public needs is rules to prevent corruption. Anything that knowingly does not obtain value for money is corrupt. The new Procurement Bill says it aims to do this: “Integrity must sit at the heart of the process. It means there must be good management, prevention of misconduct, and control in order to prevent fraud and corruption.”

I will leave it to others to describe the changes in the new bill. But it is interesting to consider how it might affect the two cases I mentioned.

  • A below-threshold contract is one worth more than £12,000 and less than (I think) £138,760
  • For a below-threshold contract, the contracting authority “may not restrict the submission of tenders by reference to an assessment of a supplier’s suitability to perform the contract [including technical ability]. I take that to mean that all procurements must be open to all potential suppliers and not shortlisted. That is admirable, and I see no difficulty in making all these tenders public. But for obscure and specialised requirements the result is likely to be a deluge of irrelevant tenders and/or no valid submissions at all.
  • This does not apply to frameworks, so the best way to procure anything below-threshold will always be through a framework. But frameworks can only sell commodities. They can’t sell niche specialised products.
  • Modifying an existing contract is covered in Section 74 and Schedule 8. I think a contract extension is limited to 10% of the term, i.e. 6 months of a five year contract. This is still not enough where a change of circumstances occurs during the contract.
  • The provision for additional goods, services or works during a contract seem less restrictive then before. “A modification is a permitted modification if (a) the modification provides for the supply of goods, services or works in addition to the goods, services or works already provided for in the contract, (b) using a different supplier would result in the supply of goods, services or works that are different from, or incompatible with, those already provided for in the contract, (c) the contracting authority considers that the difference or incompatibility would result in (i) disproportionate technical difficulties in operation or maintenance or other significant inconvenience, and (ii) the substantial duplication of costs for the authority, and (d) the modification would not increase the estimated value of the contract by more than 50 per cent.” That seems to be a lot more flexible than before.

The scope of government contracts, even just IT contracts, is vast and I don’t know how it is possible to codify the rules governing them except by introducing  a great deal of bureaucracy and expense.

Curiously, the word “integrity”, despite being one of the bill’s objectives, only occurs once in the bill, other than in the statement of the objective. It occurs in the context of the supplier’s integrity. But, when a private sector organisation contracts with a vendor, the organisation is relying on the integrity of the staff, not the vendor. If the staff act with integrity, the organisation is confident the best choice will be made.

Speaking for an SME, I’m glad the bill has provisions to make it easier for small businesses to obtain contracts from government. But I have difficulty seeing how that will work in practice. Bidding is an expensive process. The way a small business manages the cost of bidding is to screen the opportunities for a competitive advantage. This might be having a good reputation with previous clients, or offering a high quality of service, or having strong skills in a particular area. These are intangibles that are screened out in a bureaucratic tendering process.