Maintaining Openness and Competition In Multi-Stage Programmes

A little while back, we looked at a procurement issue in the UK where a competition run by the Arts Council of England (ACE) appears to have run into trouble. While all the facts are not yet clear, it looks like it may be because of a perception that the procurement has not been run with a “level playing field”.

One of the firms bidding was given money – through a grant, not via a procurement process – to develop new systems for measuring the quality of the work delivered by recipients of ACE funding. Then the same firm’s product was used in a pilot of the assessment process last year. When finally a full competitive process was undertaken this year, it appears to have collapsed before contract award. That may be because other bidders felt that the firm which ACE had funded and worked with had an unfair advantage.

If that was indeed the reason, we tend to agree that the process was not appropriate. Yet at the same time, there is rightly pressure on public sector buyers to conduct “pre-procurement” research, to engage the market before running competitions, and generally behave in a more commercial and private sector manner. So how can government buyers achieve this without running foul of regulations and accusations of bias?

The key to it really is that simple word – fairness. My daughter, like many young children, had an innate sense of fairness from an early age. Explain what happened in the ICE case to her, aged 9 or 10, and I’m pretty sure she would have said “that’s not fair”.  Some of this comes down to that test; does it just feel right and reasonable? Or is it “just not fair”?

So the question then becomes this – how then can we engage with the market and carry out research, pilot schemes or similar, while keeping that sense of fairness (and staying within the regulatory envelope)? Here are ideas that ACE might have considered and could have enabled them to run a fair competition.  

1. Run the development work separately from the delivery and compete both elements. We’ve seen examples where one competition is run to do the develop work or a pilot for a project or system, but then another competition is run for the delivery work. And it may even be possible to indicate that the firm which wins the first competition will not be allowed to win the second.

2. If you really want to give non-competed grant type funding for a stage 1 or development phase, then you really have to go to great lengths to guarantee fairness at the competitive stage. So invite any interested provider to observe, maybe even participate in the development work and the pilot. Make sure those potential bidders have access to every bit of information, data and learnings that the firm doing that early work have. (I was involved in one programme where we did this and indeed, the firm that carried out the “pilot” did NOT win the following major competition).

3. There might be an opportunity to use some sort of “framework” model where a number of suppliers are appointed to that framework following a competitive process. Then perhaps different firms can be selected for different elements of the development and delivery, without having to run further exercises. Again, all firms should be given the same information about any previous and relevant work in this case.

4. Finally, whatever route is followed, make every effort to be open and transparent. Advertise the opportunities (including if you want to go down the “grant” route), don’t just give the work to people you know as ACE seemed to have done. Put as much information into the public domain throughout the process – all that will help overcome the sense that some firm of firms have privileged information.

We’d be interested to hear any other ideas from our readers about how to manage this sort of challenge But unfortunately, the ACE case just looks and feels wrong.

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