Purdah the interruption…

by | Friday 21st April 2017 | Blog

Ahh Ms May. It’s been 10 months since the Great British Public has voted on anything important, and clearly that’s 10 months too long in your opinion.  Calling a snap General Election was the only sure-fire way of guaranteeing “certainty and stability for the years ahead” apparently and had absolutely nothing to do with party politics. Hmm.

Political analysis aside, I received a few calls from clients in the midst of active bidding today, concerned about the impact that the election, and more specifically the weeks leading up to the election, could have on their tender processes. This is what I shared with them.

What is Purdah?

“Purdah”, the Persian word for ‘curtain’, is the term that commonly describes a restriction on the activities of civil servants during the pre-election period to avoid any criticism of an inappropriate use of official resources. Purdah usually starts when Parliament is dissolved, which is expected to happen on 3rd May, and lasts until the final election result is announced.

While the Government retains its responsibility to govern and Ministers remain in charge of their departments during this period, it is customary to observe discretion in initiating any new action of a continuing or long term character.

Guidance issued to Ministers following the Prime Minister’s announcement this week clearly states that “any decisions on matters of policy on which a new government might take a different view from the incumbent should be postponed.”

Where there is any doubt about whether Purdah applies, it will generally be resolved in favour of delaying that action until after the election.

Who is caught by the Purdah rules?

Primarily, Purdah applies to all civil servants, ministers and MPs alongside executive agencies such as the Crown Commercial Service who are treated as part of central government.

Whilst it does not apply directly to non-departmental public bodies such as NHS Clinical Commissioning Groups there has been a strong indication in the past that such bodies should apply the principles of the Cabinet Office guidance.

Purdah and the impact on tendering

The Purdah guidance is clear that during the pre-election period, the current government and affiliated organisations are somewhat restricted from tendering for or entering into new contracts.

However, while Purdah is a well-observed political convention, it is not an enforceable ‘law’ and public organisations are not duty bound to adhere to the guidance.

In addition, while some awarding authorities will naturally be cautious, if you dig deeper into the guidance and historical precedent, it is clear that any restrictions on procurement activities is limited to “entering into large or contentious contracts or significant long-term commitments…”.

In reality therefore, while CCS’s current tender for £3billion annual spend of pan-Government consultancy could be seen a large and potentially contentious contract, it is probably less likely that their smaller, less controversial procurement for typing and transcription services could be pulled. Notwithstanding this, there are many examples of many high profile, large value, agenda based procurements pressing ahead during the 2015 election.

In addition, the guidance also states that spending decisions may continue where any postponement “would be detrimental to the national interest” and/or wasteful of public money.

In my clients’ cases, I would expect those procurements that are currently in progress for services with a drop-dead date and/or where a significant amount of time and public funds have been spent in getting the service to market to continue in the most part.

However, for new or anticipated contracts, I think we can reasonably expect to see a reduction in the number of tender opportunities being published on OJEU between now and 8th June.

What about after the election?

We have to assume that following the election, government procurement activity will resume. Government will continue to govern, and money will need to be spent to justify their continuing budgets. Any paused procurements will recommence, or be subsumed into new processes where the requirement endures.

With thanks to the Lord Young reforms now enshrined in statute at part 4 of the Public Contracts Regulations 2015, we can expect to see a continuation of the previous government’s commitment to the use of procurement legislation, policy and guidance to increase opportunities for SMEs to bid for public contracts.

If you’re still concerned…

Ask! It is likely that your respective awarding authority is taking legal advice right now on their planned procurement activities over the next few months. Only they will be able to fully advise as to whether your tender will be going ahead or is being delayed, and most will be happy to share that advice with you once they have it.

However, if you are a provider organisation and remain concerned about the impact of the general election on your bid processes, then I’d be happy to talk that through with you and offer any advice I can.

Bring on the TV debates, the special editions of Question Time and a LinkedIn newsfeed awash with wannabe politicians…

 

Vicki Jackson is Managing Director and Lead Bid Consultant of Intellitender Limited – a boutique bid consultancy that supports organisations like you to bid better, improve tender win rates and ultimately deliver long term competitive advantage. Intellitender has an industry-leading tender success rate of 87%. 

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