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Public Procurement in the Pandemic – Is it Who You Know, or What You Know?

Yesterday, The Times published a long article looking at how PPE (personal protective equipment) has been supplied to NHS hospitals and other locations during the pandemic. Unlike most articles on this topic, it presented a rosy picture – well, rosy at least once the Army and Clipper Logistics got involved. Indeed, it could not have been more positive about those two organisations if it had been written by their PR people.

Everything was great – everyone got all the PPE they needed, the famous eBay portal worked fine (it didn’t), and the Army plus Clipper rescued the incompetent NHS procurement system. It is a little surprising to see one part of the public sector dumping so publicly on another, but perhaps that is a foretaste of spending battles to come in the UK government through the recession, battles which the NHS is likely to win over the armed forces. Perhaps the military are getting their retaliation in first?

Anyway, the aspect of the article that grabbed my attention was the revelation that the choice of Clipper was made by Neil Ashworth, “a civilian working in the British Army’s Engineering and Logistics Staff Corps and a former supply chain director at Tesco”.  It is not clear quite how and why Ashworth was involved with the Army but The Times says “It was then that the Ministry of Defence made contact with Mr Ashworth to get the ball rolling. He recommended Clipper, a fast-growing logistics group that specialises in online retail, to his MoD contacts and they told him to recruit the company”. Ashworth then called Tony Mannix, the boss of Clipper Logistics, and off they went.

I suspect Ashworth was also behind the choice of eBay for the PPE portal, based on comments made by Eb Mukhtar, the army reserve logistician who has been the public face (or at least the public name) behind this exercise up to now.

But how did Ashworth choose Clipper? Was there an analysis of alternative options? Is there any audit trail to support that decision? Did anyone ask whether Ashworth personally had any conflicts of interest here?

Now I’m not suggesting for a moment that the team should have taken 3 months to run a formal tendering exercise. Neither do I think that Clipper slipped Ashworth a brown envelope stuffed with currency – his cv is impressive and he clearly knows this area.  But even in these “difficult times”, we need to be on our guard against fraud and corruption in its widest sense. And my definition of “corruption” includes corruption of the proper process.

So even when there is urgency, we need to know that public money is being protected. In this case, we need some transparency about exactly how these decisions were made, and what checks and balances were in place. The same applies to some of the rather odd looking contracts for PPE itself that are emerging.

In my new book, Bad Buying – How organisations waste billions through failures, frauds and f*ck-ups”, (to be published by Penguin Business in October), there are some amazing stories of fraud and corruption. But the sad fact is that it can spread quickly if there are opportunities or process weakness, as it did in the US Navy during the “Fat Leonard” affair. Or as it has in South African public procurement and through their government owned businesses, to the point where the country is close to being declared a “failed state”.   

The reason it spreads like a virus is explained in my book – here is a key excerpt.

“Finally, this matters because it has wider effects beyond the organisations directly involved, as  corruption can distort normal business and even social practices and priorities. For instance, if firms know that bribing government officials is the best way to win public contracts, a firm will focus its resources and efforts into doing that effectively. They will worry less about writing a good bid, developing better products or services or performing the work well. 

The knock-on effect is that decent firms start thinking “what’s the point”?  They either move over to the dark side and start on the bribery route, or withdraw from the market, customer or even country altogether. This can lead to a downward spiral, where supplier performance gets worse and worse, and corruption becomes endemic…”

You might think that we are somehow immune from that unhappy situation in the UK and other developed countries. We are not. If firms start thinking that “who you know” is more important in terms of winning government contracts than “what you can deliver”, then we will be on a very slippery slope. And that’s why we shouldn’t absolve those involved in public procurement during these “difficult times” from the need for process, propriety and transparency.   

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The Chris Grayling Probation Services Farewell Tour Rumbles On ….

The Guardian newspaper reported yesterday: “Ministers are considering renationalising the entire probation service in England and Wales, the Guardian understands, in the latest twist in a long-running saga to unwind Chris Grayling’s disastrous changes to the sector”.

You may not be surprised by that, or shocked to learn that the probation services outsourcing is a case study in my forthcoming book, Bad Buying – How Organisations Waste Billions Through Failures, Frauds and F**k-ups.

The analysis sits in a chapter that looks at failures caused by the buyer failing to understand a market or markets. Or, as in this case, having a foolish belief that entirely new markets can be created by sheer willpower – and throwing some government cash at the private sector, of course.

A bit of history first. The UK government decided in 2013 to outsource much of its probation services work, despite warnings from the well-respected Institute of Government that it would be “highly problematic”. The work included the management and rehabilitation of offenders, combining an element of punishment, such as monitoring the conditions of prisoners’ release, with the desire to reduce re-offending and help the offender make a useful contribution to society.

The UK Ministry of Justice, then under the command of minister Chris Grayling (who, you may also not be surprised to learn, crops up several times in my book), created 21 Community Rehabilitation Companies (CRCs) to manage offenders who posed low or medium risk. In February 2015, the CRCs were transferred to eight, mainly private sector, suppliers working under contracts that were to run to 2021-22.

But the implementation was rushed, there was little of the innovation that was promised from suppliers and 19 of the 21 companies ultimately involved failed to meet targets for reducing the frequency of re-offending. In July 2018, the Ministry announced it would terminate its contracts with CRCs 14 months early, in December 2020.

Suppliers didn’t do well either. The National Audit Office estimated cumulative losses of £294M for the firms if contracts continued to the end date, and Working Links, one of the providers, collapsed into administration in February 2019.  Finally, David Gaulke, by now the Minister in charge, announced in May 2019 that the contracts would not be offered to private firms.

Most probation services were in effect re-nationalised after one of the highest profile UK public sector buying failuresin recent years. At that point, some minor services such as the provision of unpaid work and accredited programmes were to be offered up to the private and voluntary sectors. But that now appears to have been abandoned too.

There were clearly many problems here, but fundamental is the issue of an entirely new “market” being created, without real understanding upfront of what the work involved, what capabilities would be needed by the winning firms, how the right commercial models would be constituted or how competition could be maintained and stimulated. 

“If you build it, he will come”, the tagline from the legendary film Field of Dreams, seems to be how some governments think when it comes to creating markets. And generally, some entities will emerge from the undergrowth, bidding to carry out pretty much whatever government asks them to  – drawn by the potential rewards, of course. But this does not create vibrant, sustainable, successful markets in itself.

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Are We Seeing Pandemic-Related Bad Buying?

The pandemic crisis broke just as I was signing off the proof copy for my new book, “Bad Buying – How organizations waste billions through failures, frauds and f*ck-ups“. I thought briefly about adding some pandemic-related stories, but quickly decided there wasn’t time to do it justice without delaying publication this autumn – which neither Penguin nor I wanted.

But I may well want to write something substantial about the procurement issues connected with the pandemic, because it is clear already that there are many. Not all of these by any means are “bad buying”, I would stress. I’m sure we will find that there is some great work going on, in the centre of government, in hospital trusts, in the NHS Supply Chain network, and indeed across many other organisations in local government, social care sector and so on. If I do write a book, I hope and expect that there will be as many stories of great procurement work and even heroism, as well as some failures and issues to report.

Certainly, there are enough stories emerging that will require further investigation. The mis-management of the “pandemic stockpile” of PPE (personal protective equipment) is one. Although this has had some media attention, it looks to me like a bigger failing than has really been exposed so far. How was so much of the stock allowed to get out of date, for a start? What about the “lost” items – a failure of stock control and information, or something more criminal?

PPE generally has had plenty of coverage in the media, and some of it has not been fair. Once the pandemic took hold, the global demand for PPE shot up to an extent that supply problems were inevitable. But there will be questions asked about whether the UK was agile, flexible and fast enough in its response – and no doubt other countries will ask the same thing. That will lead on to interesting debate about the whole structure and strategy for NHS procurement.

Then there is the UK’s “ventilator” challenge, in which various firms were asked to produce ventilators – with varying degrees of success. There was also the very odd decision to ask eBay to build a marketplace for PPE, which did not go well, when others such as Basware and Proband could have done it in hours based on existing capability.

That last point highlights a real frustration. There is just no transparency around how and why certain firms are being awarded contracts. Of course, we understand you can’t spend months running an “OJEU” compliant procurement process in the middle of the crisis. But it is not unreasonable for us to want to know something about how and why firms like Clipper, eBay, Palantir, Deloitte and others are being chosen, and the terms of the contracts they are working under.

If the silence continues, then we might start thinking that these decisions haven’t been taken for the right reasons. I doubt very much whether brown paper envelopes have exchanged hands, but there  are other forms of “corruption”.

I’d argue any supplier selection decision that is influenced by factors  other than objective business reasons is corrupt to some extent – that includes simple laziness (“I can’t be bothered to do the research or analysis so I’ll just give this random firm I’ve heard of the contract”), nepotism (“giving the contract to your mate”), or choosing a firm based on the fact that you rather fancy getting a job with them one day in the future.

That last idea was suggested to me as a reason for some of the tech decisions we’re seeing – “the techies in government all want to work for someone sexy like Google, Apple, or Amazon, so they find ways of working with them in their current jobs and hope to get noticed” was the suggestion.  Mind you, that doesn’t stack up with the route chosen on the tracking app…

I’ve always tended to go with the cock-up rather than the conspiracy theory when things go wrong in government. But we need some visibility around all this “emergency procurement”, or we might start thinking the worst.

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Grenfell Tower – Procurement Rules were Circumvented

The public inquiry into the tragic Grenfell Tower fire in London, which killed 72 residents in June 2017,  has heard that procurement rules were circumvented to avoid an open tendering process. Bruce Sounes, who was the lead architect on the Tower refurbishment, told the inquiry that the Kensington and Chelsea Tenant Management Organisation (KCTMO) asked the architect, Studio E, to defer some of their fees so that the cost looked like it was under the EU procurement threshold that requires a competitive process.

He told the inquiry: “I understood that this limit was the maximum contract value permissible under EU procurement regulations, above which KCTMO would have to follow a compliant procurement process in selecting consultants”. So 50% of the fees were deferred to keep the among billed below £174K.

That would have taken more time, and it was also likely that the favoured supplier, Studio E, would not have won the bid as it had little relevant experience, having not “been involved in high-rise residential, heating renewal nor the overcladding of occupied buildings.”

This artificial manipulation of contract value is almost certainly illegal under EU and UK regulations.  Buyers are not allowed to “artificially disaggregate” contracts to avoid the thresholds, for instance by breaking up a large requirement into multiple smaller ones purely to get around the rules. Deferring fees is somewhat different but arguably is an even more blatant method for avoiding the formal process.

It is a myth however that a contract value under the EU threshold means you don’t need to worry about competition. Whilst you don’t need to jump through all the hoops, buyers are still bound by principles of transparency, openness and fairness, and should show that they have used appropriate competitive processes given the size and risk of the contract. Clearly, that didn’t happen here. But just because a contract is “only” worth £170K, it doesn’t mean you can just give it to a supplier without competition.

The other puzzle here is exactly why KCTMO were so keen on Studio E winning the work. Richard Millett QC, counsel to the inquiry, said that after the firm had designed the neighbouring Kensington Aldridge academy, selecting them was “cheap, convenient, quick, even though Grenfell Tower was a completely different kind of project with different challenges”.  So, there is no hint of corruption there, although it was at best a poor decision, and an illegal one, as we’ve said.

Whilst we can’t say that the Grenfell disaster happened purely because of this open and shut case of bad buying, it is at the very least an indication of the tragic consequences that can result from poor supplier selection decisions. It is also a lesson that avoiding procurement regulations sometimes seems an easy way out; but it can have major consequences.    

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