Mixing up flexibility for simplification - some thoughts on the UK Gov Green Paper on procurement reform

I have been giving a look (finally!) to the Government's Green Paper on public procurement reform and am struck by the confusion between flexibility and simplification. The GP contends that simplification is needed and then proceeds to introduce more flexibility. It is evident to me that the proponents of this approach do not understand that providing added flexibility (and discretion) necessarily increases complexity of the system.

For example, when reducing the number of procedures to three, but putting up front a flexible procedure which can be designed at will by the contracting authority for any circumstance and can also include negotiations, what the Government is proposing is more flexibility, not simplification. That means procurement officers, sorry "commercial teams", have to decide every single time they want to use it, what to do in practice. It also means that economic operators will have to look up to the specific procedure rules for each contract they tender to instead of focusing on the requirements only. Now they need to pay attention to the specific rulebook they will have to follow as well and be prepared for slight differences every time they tender.

By creating a 'vague' and flexible procedure the Government is proposing not a procedure at all, but simply a shell to be filled by the contracting authority every time it wants to use it. This is not a procedure more so than a simple wrapper whose contents will vary in each try despite the overarching name.

In short, what we will have in our hands is the Homer of procurement procedures.

Standardisation = simplification

The Government clearly does not understand that simplification in systems involving multiple agents with varying degrees of knowledge is achieve instead by the antithesis of flexibility, that is standardisation. Standardisation in public procurement is important because it allows any agent involved in it (both on the public and private sides) to have a common framework and understanding how things operate. And, as long as every agent has a modicum of knowledge (a threshold of sorts) this works irrespective of the relative level of knowledge of each party. In other words, by fixing the procedural rules and making them consistent, even agents with limited training can navigate them without being disadvantaged.

But let's use traffic rules as an analogy for procurement rules: how can we make sure that millions of people can coexist in public roads without mayhem? By using a common and standardised set of rules identical that all agents have to follow. Let's imagine a thoroughly ridiculous scenario whereby the Government decides simplify traffic matters and unleash the innovation inside local authorities by abolishing the Highway Code which is seen as lengthy and cumbersome. Each local authority is now free to set up its own traffic rules such as speed limits, signage and road markings as long as they comply with a set of woolly principles. In this brave new world of simplification unleashed by the lack of the Highway Code, each council in the land will have to solve all the problems already solved and standardised in that piece of legislation. Maybe the council has bucketloads of red paint and decides to paint yellow lines red. Or that black and white traffic signals are way cheaper than coloured ones. Or maybe it is strapped for cash so decides to reduce speed to 20 miles an hour on a dual carriage way right on the border with another council and put a speed trap there. The opportunities for innovation are endless and the sky is the limit and councils would be loath to miss on this opportunity to innovate on traffic.

As for drivers, every time they traveled from one council's roads to another they would have to adapt a different set of rules, but what's the problem since each could be simpler than that pesky Highway Code?

How does that amount to simplification over the Highway Code for either the decision makers in each council or the drivers? Even if individually on a single procedure we may have simplification *on aggregate* the net result will be complexity.

Simplification, simplification everywhere

This is not to say that there is no scope for simplification in procurement rules - there is, but elsewhere. The GP correctly recognises that one single set of rules is preferable to multiple sets of parallel rules, but that amounts to the codification of the rules so welcome to civil law and to Napoleon's great gift to modernity of that thing we call the "legal code". Which, of course, was totally possible under EU law anyway…

There are other evident areas for simplification. For example, on reducing exclusion grounds (which this proposal wants to increase), by focusing on price (when we're going on the other direction, not that I think that kind of simplification would be good though), by reducing discretion (clearly not happening) or by automating menial jobs such as *any* sort of data entry with data from public sources or pass/fail assessments. Particularly the latter is an absolute clusterf*ck at the moment inside the EU, thanks to the mistake the ESPD+e-Certis are by not including any sort of real cross-border data sharing on the backend.

But those simplification suggestions are not really on the table today.