An Urgent Review of Single Source Procurement During the Pandemic: Recommendations for Best Practice and Reform
Lead Research Organisation:
University of Nottingham
Department Name: Sch of Law
Abstract
Public procurement has played a vital role in the COVID-19 response with over 1 billion items of equipment sourced across the UK. However, procurement has not been subject to rigorous analysis. Ordinarily, contracts must be awarded following an open competion. Exceptionally, UK law permits awards to a single supplier without a competition in cases of extreme urgency to minimise delay in delivery. Awards must still be published and clear justifications provided. Yet, hundreds of thousands of contracts have been awarded without full visibility. Further, contracting authorities face immense ongoing pressure to source quickly; suppliers have not been able to access all opportunities; and others have opportunistically charged high prices or not delivered.
This project, led by the world-leading Public Procurement Research Group (PPRG) at the University of Nottingham in strategic partnership with the Department of Health and Social Care and the Open Contracting Partnership, will conduct an urgent investigation into single sourcing during the pandemic. The aim is to develop better organisational planning, ensure legal compliance, achieve value for money, and reduce corruption risks in ongoing procurement during the pandemic. The project also aims to lay the foundation for lasting reform which is responsive to a new global political, economic and social reality. To meet these aims, the project objectives will be to: (1) collect and collate evidence of single sourcing through contract data and stakeholder interviews during a defined period; (2) develop a best-practice "toolkit" for immediate use by contracting authorities and suppliers; and (3) provide a "real-time" comprehensive review of single sourcing, comprising analysis of the evidence and recommendations for policy and legislative reform to inform imminent public inquiries and review exercises.
This project, led by the world-leading Public Procurement Research Group (PPRG) at the University of Nottingham in strategic partnership with the Department of Health and Social Care and the Open Contracting Partnership, will conduct an urgent investigation into single sourcing during the pandemic. The aim is to develop better organisational planning, ensure legal compliance, achieve value for money, and reduce corruption risks in ongoing procurement during the pandemic. The project also aims to lay the foundation for lasting reform which is responsive to a new global political, economic and social reality. To meet these aims, the project objectives will be to: (1) collect and collate evidence of single sourcing through contract data and stakeholder interviews during a defined period; (2) develop a best-practice "toolkit" for immediate use by contracting authorities and suppliers; and (3) provide a "real-time" comprehensive review of single sourcing, comprising analysis of the evidence and recommendations for policy and legislative reform to inform imminent public inquiries and review exercises.
Publications
| Description | The work examined how contracts were awarded during the pandemic, in particular, use of "single source" awards i.e. awards without competition. The research has generated significant new knowledge. Ultimately, we have acquired a much deeper understanding of how contracts are awarded, how these are regulated (through laws and policies), the impact of regulation in practice and how regulation can be improved to achieve better legal compliance and good practice. Specifically, we undertook the first ever critical analysis of "single source" procurement under international legal frameworks (EU, WTO and UNCITRAL), national legal frameworks, and policies. This resulted in two Chapters of a 550 page book (also edited by the study team): Public Procurement in (a) Crisis? Global Lessons from the COVID-19 Pandemic, the first systematic academic study of the response. Two chapters were produced within the auspices of, and credited to, the grant. These examined respectively, single sourcing regulation and practice (which, despite its prevalence, has never been a focus of study) and the UK's specific response to the pandemic. These chapters exposed legal uncertainty in the grounds for use of single source awards, publication requirements (e.g. notices justifying use and reports on use), processes for selecting suppliers, and extended the research parameters into unexplored areas such as contract management. The research identified possible reform of rules and policies to improve the effectiveness of these frameworks. Further, the research facilitated international collaboration. We drew on diverse national experiences to inform our focused study on single sourcing in the UK. We collaborated with experts in Italy, Brazil, China, Columbia, India, Nigeria, Singapore, South Africa, and the US, all of which are referenced in the chapters produced. Additionally, we received high level contributions from the World Bank, UNOPS, USAID, and a non-executive Director of the Competition and Markets Authority. Building on this comparative research, one important theme which emerged was the extent to which "open contracting" could improve procurement processes and transparency. Working in conjunction with our partner, the Open Contracting Partnership, we convened a Special Issue of the Public Procurement Law Review on the progress of open contracting in light of the pandemic experience. We received contributions from Brazil, South Africa and the UK. We received an offer from the Ukraine to contribute, having led the way in this area but which did not materialise for obvious reasons. This Special Issue will be made "open access" given the project's commitment to transparency and will be freely available to download. In addition, we have submitted a draft "Single Source Direct Award Protocol" to the Department of Health and Social Care drawing on lessons learned to identify best practice for purchasing in emergencies. The study team has worked with DHSC officials to draft the document. This remains in progress. However, this is understandable given that litigation in respect of COVID-19 contracts remains ongoing and the speed of progress of current post-Brexit reforms which promise to introduce important changes in this area. We hope to revise and update this draft accordingly in due course. Following on from this award, in 2022, the author received an external grant from the British In Vitro Diagnostics Association to write a 160 page White Paper examining the procurement of IVD test kits (lateral flow and PCR) during the pandemic including lessons learnt and recommendations. This White Paper relies, in part, on the findings from this AHRC research project and both the AHRC project and relevant chapters of the book which the AHRC grant part funded are cited repeatedly throughout the White Paper. The White Paper should inform the COVID-19 inquiry modules on procurement of PPE and the Test & Trace strategy. We are preparing various KE and impact related activities around it. This would not have been possible without the prior research undertaken for the AHRC project. |
| Exploitation Route | In terms of non-academic routes, we believe that we have an opportunity to inform policy-making and practice. There is much litigation ongoing (some going to the Supreme Court). Our research was requested with a view to considering the legal arguments in this area. We also hope to produce a final version of the direct award guide for use by a Government Department. One of the study team has been highly influence in developing proposals for post-Brexit legislation in the area of public procurement. It is therefore possible that our research will inform the shape of that legislation and policy guidance in due course. We also expect our research to be taken forward within academia. Our extensive comparative research of emergency responses and highly technical legal analysis will be of significant use to academic researchers working not only in the field of public procurement but also those working on any regulatory issues in the context of "disaster" and other emergency responses. |
| Sectors | Healthcare,Government, Democracy and Justice |
| URL | https://pandemicandbeyond.exeter.ac.uk/projects/ethics-law-and-governance/an-urgent-review-of-single-source-procurement-during-the-pandemic-recommendations-for-best-practice-and-reform/ |
| Description | Department of Health and Social Care |
| Organisation | Government of the UK |
| Department | Department of Health and Social Care |
| Country | United Kingdom |
| Sector | Public |
| PI Contribution | Stage 1 development of a draft Departmental direct award process guide |
| Collaborator Contribution | Access to key personnel directly involved in COVID-19 PPE procurement; access to key internal Departmental policy documents recently adopted |
| Impact | We are three and a half months into the grant. At this stage, we have produced a draft version of the direct award process guide. |
| Start Year | 2020 |
| Description | Open Contracting Partnership |
| Organisation | Open Contracting Partnership |
| Country | United States |
| Sector | Charity/Non Profit |
| PI Contribution | To date, we have jointly hosted a seminar on the power of data in public procurement during COVID-19 (see details in the engagement activities section). We are also working closely with the OCP's lead data analyst to obtain the most comprehensive data set possible on the use of single sourcing during the pandemic from countries signatories to the Open Contract Data Standard. This data will be used to produce the second proposed output (an open access evidence/policy paper on single sourcing during the pandemic). |
| Collaborator Contribution | To date, we have relief on the input from a lead data analyst to search and collate all data required for the project which we will then analyse. They have also provided a list of contacts which have undertaken individual country studies of procurement during the pandemic which we will then interview in the next phase of the project. |
| Impact | In progress |
| Start Year | 2020 |
| Description | 2021 Summer School of the International Anti-Corruption Academy on the lessons learned for public procurement from the COVID-19 pandemic |
| Form Of Engagement Activity | A talk or presentation |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Policymakers/politicians |
| Results and Impact | On 29th August Professor Sue Arrowsmith presented an afternoon session to the 2021 Summer School of the International Anti-Corruption Academy on the lessons learned for public procurement from the COVID-19 pandemic. The presentation was based largely on the findings of the book. |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://www.nottingham.ac.uk/pprg/news/2021/professor-sue-arrowsmith's-presentation-on-procurement-a... |
| Description | Presentation to Brazilian law firms |
| Form Of Engagement Activity | A talk or presentation |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Professional Practitioners |
| Results and Impact | We developed particularly active research links with South America during the course of our project, especially in Brazil. We were invited to present our research at an industry event in Brazil. This fostered further collaboration (the law firm in question produced an article on open contracting for a special issue and contributed to our book). |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://www.nottingham.ac.uk/pprg/news/2020/sue-arrowsmiths-presentation-at-webinar-on-covid-19.aspx |
| Description | Public Procurement Research Group Seminar: The power of data in Public procurement: lessons from the frontline of the COVID-19 |
| Form Of Engagement Activity | Participation in an activity, workshop or similar |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Policymakers/politicians |
| Results and Impact | On Friday 05/02/2021, 11:00 - 12:00, the Public Procurement Research Group hosted an event addressing the use of data as a tool to improve transparency in public procurement during the pandemic. The event was organised by the Co-Investigator (Professor Anna La Chimia) and held in partnership with the Open Contracting Partnership, a formal partner under the grant. The purpose was to explore issues surrounding the availability and use of data in public procurement during the pandemic. The aims and objectives were to discuss: (1) the problems of accessing and gathering data on public procurement during the pandemic; (2) the extent of data published during the pandemic; and (3) how access to and use of data can be improved. The event is directly linked to the AHRC project. We are currently working with the OCP to obtain the most accurate/comprehensive known data set on single sourcing conducted during the pandemic based on the OCP's data of all signatory countries to the Open Contracting Data Standard. This will provide global data that we will use to compare with UK data on single source awards during the pandemic. The OCP's Lead Data Analyst (Camila Salazar) is working in collaboration with us to source all relevant data. In doing so, we have encountered certain issues e.g. refining data fields for searches, the fact that not all searches of national databases produce the required terms (e.g. using product/key term identifiers etc). The event was an ideal opportunity to reflect on the challenges facing access to and use of data. It has helped us to refine our data requests which will optimise our data return for analysis. The data analyst is due to report on the requested data shortly. We will then begin analysing it to produce a policy paper (output 2 in the grant). |
| Year(s) Of Engagement Activity | 2020 |
| URL | https://www.nottingham.ac.uk/law/news/2021/the-power-of-data-in-public-procurement-lessons-from-the-... |
| Description | Research video on Covid-19 projects by members of the PPRG |
| Form Of Engagement Activity | A broadcast e.g. TV/radio/film/podcast (other than news/press) |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Media (as a channel to the public) |
| Results and Impact | We recorded a series of videos exploring our current COVID-19 research under various grants. This led to further expressions of interest and invitations to speak at other events. |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://www.nottingham.ac.uk/pprg/videos/index.aspx |
| Description | Workshop on open data and procurement during emergencies |
| Form Of Engagement Activity | Participation in an activity, workshop or similar |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Third sector organisations |
| Results and Impact | The study team held a workshop on open data and procurement during emergencies involving contributions from leading officials and third sector organisations working in the field of open contracting. This resulted in further engagement which led to a special issue of the Public Procurement Law Review |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://www.nottingham.ac.uk/pprg/videos/index.aspx |