General Election 2017: Purdah and the Effects on Procurement

What is purdah?

Purdah is introduced to minimise the risk of criticism through inappropriate use of resources in the face of political uncertainty. Typically, it is invoked when parliament is dissolved, with all returning to normal when the final election result is announced.

The process of purdah is implemented as an attempt to stabilise the public administration landscape and establish a controlled, as-is state across the civil service. It applies to civil servants, MPs and cabinet ministers. Crucially, the order also applies to the Crown Commercial Service, in addition to all other executive agencies, such as Companies House.

Although government still has the responsibility and authority to oversee the various structures of state, and ministerial duties are expected to be performed as usual, it is anticipated that all in the civil service exercise moderation, prudence, and above all, discretion. Primarily, government officials are directed to abstain from taking decisions or proposing policies that could be overturned by an incoming administration.

Other functions of purdah

Of course, purdah also has a second function: it shores up potentially leaky political vessels against last-minute breaches, brought about by public announcements or decision-making, that could compromise carefully constructed policies and public images. By stemming ministerial activities, purdah stabilises the party ranks and establishes a controlled, as-is state across the party, where individual actions cannot undermine an election campaign.

Far from an unspoken rule, purdah is acknowledged by the government, and formalised as a set of guidelines for civil servants to adhere to. This framework of rules and procedures includes instruction on ensuring civil servants’ duties do not compete with the election for public attention, and avoiding the use of government resources for party political purposes.

Purdah was brought into effect on April 22^nd. As such, there will be a noticeable slowing down of activities, and this has already occurred within public administration forums. Whilst MPs are permitted to take leave of Westminster and campaign within their constituencies, the civil service will decelerate to a steady pace, with no input from on-high.

What does this mean for procurement?

Although this sense of order within the administrative realm is artificial, it does have genuine knock-on effects for certain government functions, not least public procurement.

The government guidelines state that essential business must be carried on during purdah, but apprehension and lack of clarity surrounding where local authorities stand within the process can impact upon procurement phases.

Although local authorities are not under any legal restrictions on activity in the pre-election period, they are advised to act with caution to reduce the risk of challenges on the grounds that a decision has been made on political grounds, rather than on its merits. Some likely manifestations that a local authority is playing it safe and adhering to purdah are:

• The rescheduling or cancellation of SQs or ITTs that are early in their procurement cycles
• The withdrawal and quick re-issue of tender documents, which may indicate purdah considerations have been incorporated to avoid any claims of partiality
• Reluctance to release tender award notices
• Eagerness to issues contracts and ratifiable documents, which may have occurred prior to the April 22 deadline. If you have been expecting contract documents to be exchanged and the agreed date is overdue, don’t be surprised if you’re waiting until 8 June as a minimum.

Typically, these are consequences of the uncertainty as to where the restrictions on public procurements begin and end. Whilst executive agencies such as the Crown Commercial Service are not legally barred from entering into contracts during the period, they are prohibited from entering into ‘large or contentious contracts’. Often, this is enough to see extended stand-still periods, withdrawing of ITTs and repeated amendments to tender submission deadlines.

In previous purdah periods, some local authorities have taken the lead from executive agencies and complied in full with purdah by hesitating to conclude or mobilise processes for larger contracts.

How will this purdah period be characterised?

Will procurement stall as executive agencies wait for the other shoe to drop, and will local authorities follow suit?

The mostly likely outcome is that the number of contracts issued will fall noticeably during purdah, with tenders that have not yet been released being placed on the backburner until the dust has settled on the general election, at which time they will be published. If you were awaiting news of a tender release that is overdue, Theresa May’s announcement may well have ensured that this has been paused until June 9.

In theory, tenders that are currently in progress should not be affected, but do not be surprised if the trickle of clarification responses slows down, standstill periods feel interminable, or those contracts you have been waiting for never seem to arrive.

If you are unsure of the status of your submission, raise the question with the awarding authority. If the process has notably slowed since the introduction of purdah, it is likely that they are considering their own options as to how to proceed.