Tag Archive for: Regulations

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Is UK Public Procurement Getting Confused About AI?

This is a big year for public procurement in the UK. In October (probably) the new Procurement Act becomes law, finally replacing the EU public procurement legislation with a new set of regulations designed by and for UK organisations.

Generally, I feel the Cabinet Office policy team did a good job steering the consultations and proposals into a set of new rules, although there are some issues that concern me. But the team has now tied itself in knots somewhat over a different issue that has suddenly leapt to the forefront of everyone’s minds – how AI might affect public procurement (and many other aspects of our life of course!)

A PPN (Procurement Policy Note) was issued the other day that has caused some controversy and confusion. I must say, PPNs are usually clear and helpful, whether or not you agree with the underlying policy they are communicating, but PPN 02/24 is a mess.  Having read it a few times now, I think the problem is that it tries to cover too many issues, all AI related but really quite different, in one note.  I can see the following all mentioned in the note:

  1. Concerns about the use of AI in writing tender responses and proposals, in particular whether AI responses are likely to be inaccurate in terms of reflecting the actual capability of the supplier or how they will deliver the contract. In other words, the risk of AI generated bullsh*t showing up in bids. 
  2. Confidentiality or even national security issues in terms of firms using government documents connected with the procurement process to train AI systems and models.
  3. Worries that AI becoming ubiquitous and cheap is going to lead to many more suppliers putting in bids in response to opportunities, putting stresses and strains on procurement (and other) resources in public bodies.
  4. Issues around the actual purchase of AI solutions.

It seems to me that these are totally different issues. For instance, even if there was an outright ban on any use of AI in developing bids (which would be daft), there would still be legitimate security and confidentiality issues around the use of government documents in “training” AI.  That needs to be considered, but really has very little to do with procurement.

Similarly, advising people how to buy AI technology well is fine, but that surely is no differ relay to “category-related procurement advice” around energy, laptops of anything else. It is not really a procurement policy issues.

The first point – on use of AI in writing bids – has probably gained the most comment and criticism. The PPN suggests that buyers should ask suppliers to disclose whether AI has been used in bid construction, but that the answer “should not be scored” as part of the evaluation process. However, if the supplier says “yes” , might that mean their scores for other questions will be reduced if buyers know AI was involved? This could be a legal minefield.  And as others have pointed out, asking questions “for information only” in tenders is not good practice, only increasing bureaucracy and cost for bidders and indeed buyers.

The PPN also mystifyingly mentions the “risks” inherent “if a bid writer has been used by the bidder”. Sorry? I mean, someone always writes the bid. I assume they mean an “external” bid writer, but in my experience such individuals usually take more care to reflect the organisation accurately than some poor sales person who gets landed with the task of writing the document! 

The key point surely is that any bid should reflect the organisation’s capability and experience accurately, and provide a proposal that is meaningful and realistic about the actual goods and service that will be delivered if that bidder is chosen. That applies whether AI was involved or not. Indeed, humans are just as capable as AI of making up nonsense to put into bids – in fact, I suspect humans, being more creative, are more likely to write lies or nonsense than AI.

Anyway, this is a badly thought-out PPN, written in haste I assume, and further clarification and development of the very different points discussed within it will surely be necessary.

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Transformative or Tedious? The New UK Procurement Bill

The new UK public procurement legislation has been laid out in a Bill now which is being discussed and revised in the House of Lords. Leaving aside political comments, most independent experts, particularly the procurement academics and lawyers, see it as being somewhere in the range between “mildly disappointing” and “mildly positive”.  (Read an excellent assessment from Professor Sanchez-Graells here and a useful set of proposals for improvement from the UK Anti-corruption Coalition here).

I suspect that is inevitable. Public procurement aims to meet several different objectives, but sadly these are not all congruent – we can’t have it all. Public procurement has to balance:

  • Achieving fundamental value for money in what is being purchased – getting the right blend of quality and cost that enables the taxpayer to feel their money is being spent carefully and sensibly to generate the desired policy outcomes.
  • Minimising the chances of fraud or corruption by making such actions difficult or easily detected.
  • Encouraging innovative, dynamic, competitive markets – not just to help achieve future value for money in public spend, but because that will help the wider economy too.
  • Contributing towards wider UK government and societal objectives – economic, social, environmental or, as we now see, more overtly “political” in nature. (Using public procurement to support the government’s “levelling up” agenda for example is the type of political objective we’ve never really seen before in public procurement). 
  • Doing all of this in manner that keeps the transactional cost for both buyer and supplier to acceptable levels.

The problem is that these objectives can be conflicting. Simplify processes and deregulate, and you may reduce transactional cost and stimulate markets, but it will inevitably increase the chance of fraud and corruption. Focus more on the “social value” benefits, and if you are not careful, you will jeopardise basic value for money. And so on.

So it is impossible to keep everyone happy with regulations, and this is why it is difficult to assess the long-term effects of the new Bill. It will be at least two years before we see how the different objectives are being met or not met.

Perhaps the element that has most potential for transformation, but is also a major area of uncertainty, is the freedom for contracting authorities (CAs) to design new procurement processes. Will we see innovative and effective new ideas emerging, including innovative use of technology? Or will CAs quickly default to the “recommended” standard options that Cabinet Office are going to provide?

No doubt we’ll be writing further about this topic as the Bill proceeds into law, and there are some key areas where I’m not clear yet about the likely implications. The proposals on the role of technology, and the whole transparency area both have some positive aspects, for instance, but the devil is in the detail. However, here are a few predictions to be going on with.  

  1. The Cabinet Office standard processes will look pretty similar to the previous EU procedures, but with a bit more “negotiation” added in. But there will be so many caveats and warnings about (e.g.) equal treatment for suppliers that CAs will only use negotiation very cautiously…
  2. … unless they are running a corrupt procurement, where somebody in a powerful position wants a particular supplier to win. But of course that NEVER happens in the UK(!!)  I’m afraid we will see increasing corruption in public procurement, not just because of the greater freedoms, but because moral and ethical standards in the country are eroding from the top down.  
  3. Some lawyers are getting excited about the new rules on exclusion (mainly because of their complexity) that enable buyers to ban firms from bidding. But they will prove to be largely theoretical and decorative. I can’t imagine many hard-pressed procurement directors looking at the really complicated regulations for exclusions and saying anything other than “OK, let’s forget about this”.  (See Pedro Telles on this).
  4. Within a year or two, we will see suppliers complaining that the new rules don’t seem to have simplified public procurement.  I’m not criticising the Cabinet Office policy folk here – I’m just not sure it is possible to really simplify matters whilst trying to meet all those different goals. And no, I don’t have amazing transformative ideas myself, to be honest.
  5. Many older / less flexible public procurement professionals will retire or move out of the sector. “I’ve done things this way for 10/20/30 years, I just can’t be bothered with the hassle of learning all this new stuff now”.  I’m already hearing of that issue, and we will see a staffing crisis in public procurement (unless we go into a major recession that releases private sector professionals!)
  6. Given points 1 and 5, we will see more and more use of frameworks let by collaborative buying organisations, (Crown Commercial Services, YPO, NHSSC etc).  Unfortunately this is probably not good news for supply chain resilience in general, or for local, smaller or innovative suppliers. However, the “new” central procurement unit won’t have much impact.

Finally, there are metrics that will prove whether these predictions come to pass. If they do, we will see more single tender procurement exercises (only one bidder or a “direct award”).  We’ll see further growth of the buying aggregators. There will be a very low number of exclusions.

If I am wrong, we will see happy suppliers, more bidders per contract, fewer single supplier tenders, growth in contracts to local, smaller suppliers, social enterprises and so on. There will be fewer Private Eye-type scandal and corruption stories, and a decent number of dodgy suppliers excluded … So I hope I am just being a grumpy old pessimist! 

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Public Procurement During Emergencies – New eBook Lays Out the Issues

Thanks to Supply Management website for drawing my attention to a new e-book, which is a  collection of chapters from different academics and researchers, all around the theme of public procurement in times of emergency.

“Procurement in focus – Rules, Discretion and Emergencies” is published by the Centre for Economic Policy Research (CEPR), a network of over 1600 research economists based mainly in European universities, and it is edited by Oriana Bandiera, Erica Bosio and Giancarlo Spagnolo. It can be downloaded here (free of charge).

It is somewhat academic in nature, as you might expect, but it has interesting and useful commentary on issues related to emergencies and corruption – and indeed more general insight into public procurement issues. The chapter on procurement competence, for instance, applies more widely than simply during a crisis.

The authors start by defining this “problem” with public procurement.

The procurement of public goods and services is a textbook example of moral hazard: an agent buys goods that he does not use with money he does not own. The agent’s goal is typically set to achieve ‘value for money’ for the taxpayer, but value for money is hard to measure and often not entirely under the control of the agent. The latter makes the contract between the state and its procurement agents incomplete and, for economists, very interesting.

This issue of moral hazard and “agency” leads to a fundamental issue with public procurement. As the authors say:

The core theme that runs through the book is the fundamental tension between rules and discretion. Rules limit agents’ ability to pursue their private interests at the expense of the taxpayers, but discretion allows them to use their knowledge of the context and react quickly to unforeseen changes. 

During the pandemic, and at other times of disaster or emergency, procurement regulations are often suspended or more flexible approaches are allowed. That increases the speed and flexibility with which important procurement activities can be delivered, but it also increases the chance of fraud, corruption and waste. How to balance those two aspects is tricky, to say the least, as the furore in the UK over PPE procurement last year has shown.

There is no doubt that buyers had to move quickly to save lives; but did that speed and lack of process regulation allow corruption or at best “cronyism” to thrive? It certainly did cost the UK taxpayer billions, as more PPE than was really needed was bought, at hugely inflated prices compared to those that were usual in the steady-state market.   

From a Bad Buying viewpoint, corruption is often hard to identify and therefore hard to measure in an academically rigorous way.  So researchers generally use “proxy measures” – for example, looking at the number of contracts awarded without competition, single bidding situations, or very short deadlines for bids. Clearly, we saw more of this behaviour during the first emergency period of the pandemic. However, in some cases, emergency procedures are still in place, and the book questions why this continued higher risk of corruption is being allowed to continue now, given that in most cases, supply is no longer quite so emergency in nature.

The chapter by Mihaly Fazekas, Shrey Nishchal and Tina Soreide, titled “Public procurement under and after emergencies” is particularly relevant to what we have seen in the last 18 months or so. It acknowledges that procurement must be handled differently in times of emergency, and makes these sensible recommendations:

  • Preparations for emergency situations should include defining crisis-ready contracting procedures, outlining fundamental principles of crisis response, putting in place effective ex post controls and setting out a risk-based sanctions framework. Controls should be targeted at high-risk procurement without disruptive, wide ranging monitoring frameworks.
  • Monitoring and controls are best reoriented towards outputs and results rather than procedural correctness because deviations from standard open tendering processes (e.g. short advertisements) are unavoidable in times of crisis (Fazekas and Sanchez 2021).
  • Strengthening non-bureaucratic controls of public procurement outcomes may counter-balance loosened ex ante procedural checks. For example, greater attention from civil society and the media may contribute to stronger political accountability, which is likely to increase the cost of corruption in emergency spending.
  • While many of the corruption risks in emergency procurement are hard to avoid and control, ringfencing emergency rules both in time and by market is crucial. Obviously, if emergency spending is needed in healthcare, there is little justification for relaxing the rules for building football stadiums, for instance.

Much of the book is well worth reading for anyone interested in the fundamental principles and issues of public procurement. It is also very relevant at a time when the UK is putting together its new post-EU public procurement regulations – and we hope to feature more discussion around that here shortly too.  

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