02:16:55 Chris Yukins: There's a link on the program resources page, https://publicprocurementinternational.com/2022/02/01/kcl-gw-symposium-anti-corruption/, to the March 2019 KCL/GW Law symposium on debarment -- with further UK, EU and US resources. https://publicprocurementinternational.com/2019/01/14/kings-college-london-gwu-law-school-annual-symposium-exclusion-and-debarment-18-march-2019/ 02:21:47 Chris Yukins: A video recording of today's session will be linked from the program page at https://publicprocurementinternational.com/2022/02/01/kcl-gw-symposium-anti-corruption/ 02:24:31 Chris Yukins: As we will be discussing, the _language_ of the EU directives is being abandoned, but many of the most nettlesome _principles_ of the EU directives have been carried forward into the UK bill. 02:26:54 Chris Yukins: My apologies to all that I am not there in person. My wife came down with Covid (she's doing much better), so I am here in the United States tending to her. 02:27:44 MARCIO PACHECO: Good morning. My name is Marcio from Rio. 02:28:12 Goodtime: Hi 02:28:30 Goodtime: I am Okara Goodtime from Nigeria 02:28:52 Gavin Hayman: Great to have you with us. If you want to know more about our work transforming procurement at the Open Contracting Partnership, see www.open-contracting.org 02:29:20 Chris Yukins: A chapter I co-authored with John Pachter and Jessica Tillipman, from a Cambridge University Press handbook on compliance, on the US debarment system, is inked on the program page. 02:29:45 Gavin Hayman: And a quick blog on our take on the new UK Bill here: https://www.open-contracting.org/2022/05/19/draft-procurement-bill-missing-transformational-vision-here-is-our-10-point-plan-to-fix-it/ 02:31:17 Chris Yukins: We will be reviewing Gavin's (the UK Anti-Corruption Coalition) 10-point comments in detail -- the document is linked on the program page, and it's an important part of this policy discussion. 02:38:34 Chris Yukins: For the Americans in the audience -- "Remedies" are "Bid Protests" or "Bid Challenges." The bid challenge provisions are addressed in detail in the bill, and starting at slide 30 (posted on the program page). We plan to return to them later. 02:40:59 Chris Yukins: The specific exclusion of Her Majesty gives one a sense of the sweeping scope of the bill -- the intent is, presumptively, to sweep up all procurement in the UK, though there are the many exceptions that the discussion is picking up. 02:42:41 Gavin Hayman: Yes, great point Chris. One of the key elements of the Brexit vision for the reform is a single common rulebook and yet there are many exceptions and potential carve outs including for huge areas of spending like the NHS. 02:44:04 Gavin Hayman: To clarify: potential exemptions/exceptions. It all depends on the secondary rulemaking and powers that different Secretaries of State choose to retain for themselves. 02:47:05 Aris Christidis: On the ‘manifest error test’ and the standard of review, I want to draw your attention on the wording of section 94(f) in conjunction with section 93(2). This refers to the new 'set aside' remedy (that replaced in wording the ineffectiveness). My reading is that it suggests that every violation/breach can be challenged and if a violation is found contract ‘must’ be set aside subject to ‘overriding public interest’. It is very strangely drafted. No test for pre-contractual remedies. Review is a very important point in tackling corruption. Would be grateful to hear your views, if possible. Thank you. 02:57:05 Chris Yukins: Section 51 of the bill (see slide 58) discusses the need to publish contracts over 2 million pounds. A summary of Section 51: (1) A contracting authority that enters into a public contract awarded under this Part must publish a contract details notice— (a) if the contract is a light touch contract, [within] 120 days . . . ; (b) otherwise, [within] 30 days . . . . (2) A “contract details notice” means a notice setting out— (a) that the contracting authority has entered into a contract, and (b) any other information specified in regulations . . . . (3) Before the end of . . . 90 days beginning with the day on which a contracting authority enters into a public contract with an estimated value of more than £2 million, the authority must publish a copy of the contract. 03:00:08 Marcello Sanguineti: Hi from Italy (Genoa, more or less), and thank You so much even for a so many details. 03:01:24 Chris Yukins: When the past performance reports that Jessica Tillipman is discussing were first set up, the assumption was that the past performance reports would all feed into awards -- but as Jessica pointed out, that because of artificial constraints and limitations of human capacity in reviewing the reports, only "top 3" past performance reports are actually used in many procurements -- while any restaurant we go to has and presents 100s of reviews. 03:04:52 Chris Yukins: To Gavin's comments - section 61 (see slide 66): For contracts over £2 million, “a contracting authority must set and publish at least three key performance indicators in respect of the contract” (Sec. 50) Every 12 months and on termination, contracting authority must “(a) assess performance against the key performance indicators, and (b) publish information specified in regulations . . . in relation to that assessment” (Sec. 66) If supplier breaches contract, which results in termination, damages, or a settlement agreement, or if the supplier is performing poorly, been given an opportunity to remedy and has failed to do so – the contracting authority must publish a notice, giving circumstances and any other information specified by regulations (Sec. 66) 03:06:04 Chris Yukins: Sorry, it's Section 66. The bill itself is linked on the program page, and the slides are there too. 03:06:36 Law Events: The definition of sensitive commercial information is in s.85(2) of Bill (Albert) 03:08:54 Chris Smith: Albania doing some great work on bid challenge transparency 03:14:27 Caroline Nicholas, UNCITRAL: UNCITRAL also recognised that discretion NOT to exclude is necessary, but this formulation is far too complicated. What it means as Albert says is that there is no mandatory ground; there is a presumed exclusion only. 03:15:59 Gavin Hayman: And the principle of transparency under UNCITRAL too? 03:16:28 Ian Campbell: Good Morning All, I am Ian Campbell from the Planning Institute of Jamaica 03:18:07 Gavin Hayman: Just on the confidentiality. Section 85 establishes “General exemptions from duties to publish or disclose information” such that: The first clause has a strong test " the information is sensitive commercial information and there is an overriding public interest in its being withheld from publication or other disclosure.” Whereas in (2) “Sensitive commercial information” is information which: “(a) constitutes a trade secret, or (b) would be likely to prejudice the commercial interests of any person if it were published or otherwise disclosed.” Which is a little weaker to my mind. Would be likely vs overwhelming interest.. Hope that makes sense. 03:42:16 Chris Yukins: Under the US regime, Federal Acquisition Regulation Subparts 9.1 (contractor qualification) and 9.4 (debarment), the burden of showing qualification rests with the contractor. 03:45:25 Abby Semple: What Albert says about reversing the burden of proof is important. Has anyone applied the 'Carillion' test to the new exclusion provisions? If these provisions had been in place, would Carillion have been excluded prior to causing huge problems for the public sector when they failed? 03:46:10 Law Events: Very good question, Abby. I guess the answer is no? 03:49:31 Abby Semple: Other than breach of contract and poor performance, there doesn't appear to be any grounds which addresses financial instability, as opposed to insolvency/bankruptcy. Admittedly this is seldom black + white, but given the relatively recent memory of Carillion, one might expect an exclusion grounds which reflects that type of situation. 03:57:43 Chris Yukins: Under U.S. FAR Subpart 9.1, the prospective contractor bears the burden (if there's any question) of presenting evidence of its financial stability. If it fails, the vendor will be held non-qualified by the contracting officer (the U.S. calls it "non-responsible"). 03:59:30 Abby Semple: Thanks - yes exclusion and selection are snapshots, good if there is some ability to revisit these during frameworks etc. But part of the problem with Carillion was that they continued to be awarded public contracts long after they had exceeded their capacity to operate effectively. There were suspicions regarding their capacity, but no public body felt they were able to act on this. Interesting to compare with the US position. 04:01:03 Chris Yukins: In the U.S. regime, contracting officers can be aggressive and intrepid here when they smell bankruptcy risk -- they will interrogate aggressively. It's really nothing more than a request for assurances under commercial law. 04:01:19 Sope Williams-Elegbe: I really think it is going to end up as a paper tiger or very lame duck. 04:01:26 Law Events: Abby, maybe the issue is with the formaliities around eg annual accounts (which can be close to 15 months old by the time the snapshot is taken? Would eg self-certification that circumstances have not materiall changed have to be given more teeth? 04:01:42 Nevile Manases: Hi everyone I am very happy to be part and parcel of this wonderful virtual meeting My name is Nevile Manases Ochieng I am a kenyan by birth who has an interest in the field of public procurement law currently I am a final year student pursuing a bachelors degree in public procurement law at KCA University in kenya and I have really tried to look for scholarship so as to be able to pursue this lucrative course since in kenya it is not being offered.I really a have a great passion for this course but I haven't given up I will still continue to partner with you people. 04:02:50 Aris Christidis: Clause 72 does imply a term in the contract that allows termination if a supplier has since the award become excluded or excludable. Maybe government should consider other such implied terms (e.g. shortening duration, penalty clauses, etc...)? 04:03:52 Abby Semple: Re: self-certification regarding material change in circumstances, I think most declarations on exclusion grounds do include an obligation to inform the contracting authority of material change. But yes, financial selection is often on the basis of outdated accounts. 04:04:18 Law Events: That is a good point, Aris. It does extend the dynamic approach (if there is anyone looking into it -- presumably the clause makes an oblique reference to inclusion in the debarment list?). 04:06:27 Chris Yukins: Ukraine's success with the ProZorro system -- and the resilience of that system in reinforcing the Ukrainian government's legitimacy in a time of war -- shows how important Gavin's point is -- Ukraine succeeded precisely because legal reform (on which Abby Semple participated) was combined with systems reform (on which Eliza Niewiadomska at EBRD has been a leader). 04:09:18 Nevile Manases: Thanks will check 04:10:35 Chris Yukins: The U.S. legislation was the "SUSPEND Act" We had a very lively colloquium at GW when the suspending/debarring officials at the agencies voiced their collective opposition to a centralized debarment function. The legislation failed. 04:13:13 Chris Yukins: Sec. 61: Appeals (1) A supplier may appeal against a decision of a Minister of the Crown— (a) to enter their name on the debarment list . . . (b) not to remove their name from the debarment list . . .. (2) An appeal under subsection (1) must be brought and determined in accordance with regulations made by a Minister of the Crown 04:18:36 Chris Yukins: Jessica Tillipman is referring to the Darleen Druyun case; she was the Air Force's senior procurement official, and her wrongful hiring by Boeing generated perhaps the largest conflict-of-interest scandal ever in the US system. 04:21:28 Jessica Tillipman: It needs to be defined. 04:21:29 FAD B: Suggestion: would not be better to use also under Duty to Mitigate "a CA must take all reasonable steps to ensure that a conflict of interest does not put or risk to put a supplier at an unfair adv. or disadvantage. …" 04:21:48 Jessica Tillipman: And treatment should vary depending on the type of conflict. 04:23:12 Chris Yukins: Under the US organizational conflict of interest regime, FAR Subpart 9.5, the contracting officers are encouraged to assess potential organizational conflicts before the procurement opens. One sees these assessments occasionally in solicitations here. 04:26:04 Jessica Tillipman: Ours is the reverse. More standardized ethics rules at our federal level, and patchwork at state and local 04:27:30 Chris Yukins: The Office of Government Ethics is the centralized agency on personal conflicts of interest. https://www.oge.gov/. Lots of references and resources. 04:35:10 Lawrence Telpher-Randolph: Hi 04:40:00 Aris Christidis: The scope of the rules is poor. I agree 100% 04:40:44 Chris Yukins: Just before the war, Ukraine was considering pulling land transactions from the ProZorro electronic system. It was a brewing debate. . 04:44:16 Gavin Hayman: Ukraine put land and buildings into Prozorro.sale as a transparent auction process for selling state assets. https://medium.com/@opencontracting/governments-first-online-store-driven-by-open-data-574ba06a23ce 04:48:25 Law Events: This is the post by Pedro Telles I was referiting to: http://www.telles.eu/blog/2021/1/13/the-lack-of-automation-ideas-in-the-uk-gov-green-paper-on-procurement-reform 04:53:03 Aris Christidis: there is no teeth in this review unit. 04:53:51 Gavin Hayman: yes, exactly/ 04:56:19 Gavin Hayman: The mandate of the 'unit' needs to be tightened and strengthened as ti should play a important role in ensuring proper and fair application of the rules as a needed counterbalance to increased local discretion 05:07:52 Aris Christidis: But you now have the ineffectiveness (set aside). Challenges should focus on decision, contract as such. Damages are not an appropriate remedy, I agree with Chris. 05:09:31 Gavin Hayman: It has been a fascinating discussion everyone. Thanks so much! 05:09:57 Caroline Nicholas, UNCITRAL: Great discussion if not very positive!! Thank you all 05:10:18 Harriet Brown: great discussions. thank you all 05:10:19 Thang: Thanks to all! 05:10:21 Sharon Brown: Yes Great discussing 05:10:26 Aris Christidis: Thank you everyone! Great discussion! 05:10:26 Michal Kania: Thank you for the great event! Hope to see you soon 05:10:31 Steven.Brunning: Thank you everyone! 05:10:31 Sharon Brown: Thank you for this 05:10:32 Marcos Ozorio: Thank you for the very interesting event 05:10:33 FAD B: Thank you 05:10:35 Mindy Birk: Thank you 05:10:37 Lawrence Telpher-Randolph: Bye 05:10:39 abnkata@yahoo.com Abraham: thankn 05:10:41 Nevile Manases: Thanks all 05:10:51 Marcello Sanguineti: Thanks! 05:10:53 Nevile Manases: Bye 05:11:01 Xinglin Zhang: thank you 05:12:34 Manasses Botelho: THANKS, BYE