Public Sector – Private Challenge: IT and the Public Sector

The 6th Annual SCL event took a different turn this year with the focus on public sector procurement. This change of direction is the probable explanation for the high attendance and many new faces. As the marketing blurb said ‘we all have a vested interest in the success of the public sector projects, as advisers and taxpayers’.

 

The room was divided into three columns of chairs and I momentarily wondered if this was to assist members in sitting in clearly defined zones: ‘a supplier section’ and ‘a public body section’ with a third neutral exclusion zone. Fortunately, whilst lawyers may on behalf of their clients cut each other dead with the stroke of a pen, we are a remarkably polite and cordial bunch, and the hotel bouncers weren’t required. Still, despite partnership approaches to project in the public sector, there was a genuine tension. Presenters could be forgiven for a slip of the tongue when referring to the relationship between public sector and suppliers as ‘adversarial’.

 

The conference kicked off with an excellent introduction by Bill Jones.[1] After covering why we were there and the basics of phones off and emergency exits with pleasing alacrity, he also mentioned the new facility of a transcript of the conference being made available by SCL, thus saving the need for the attendees to make copious notes in the margins. Pens went down around the room, except for those of us who can now no longer think without simultaneously writing attendance notes.

 

The conference on Friday started in earnest with a lecture and panel discussions relating to the new standard contracts and guidance published by OGC, and the responses from Intellect and the supplier community. The mix of lecture and panel was an effective format, with the lecture giving structure and direction to the panel discussion. With Richard Bonnar[2] as convenor, speakers Ian Glenday[3] discussing the role and future strategy of the OGC, Bruce Harmsworth[4] discussing the role of Partnerships UK, and panellists Richard Granger[5] and Roger Bickerstaff,[6] there was a genuine sense that the audience achieved a better understanding of what these departments actually do.

 

A few minutes could have been shaved off the timetable as the keynote speaker Richard Granger needed no introduction. There couldn’t have been anyone in the room who hadn’t heard of him and his role of Director General of IT, and the National Programme for IT. His presentation outlined the successes of the programme. Whilst everyone in the room had heard of the programme, it seemed from the murmurs of surprise from the audience that few had heard any of the good news. The media has a tendency to predict doom and emphasise any failure. Jan Radler of Siemens deserves an honourable mention; he obtained the cautious respect of the room by finishing his question. NPfIT still seems to be the significant memorable project of the year, with at least seven references to it over the weekend as illustrative examples, not including Richard Granger’s lecture.

 

The response from industry with convenor Clive Davies,[7] speaker Pat Barlow[8] and panellists Andrew Hooles[9] and Mike Grundy[10] gave the supplier’s perspective to the OGC contracts and government approach to contracting. There was much that was disputed, but surprisingly there was still some common ground, such as that standard contracts can support adoption of ‘best practice’ and that the utility of standard contracts is dependent on the skill of those using them. Otherwise the areas of contention probably did not surprise many in the audience: does government understand the profit motive, increasing use of indemnities, consistency and standard of personnel, role of the government advisors, payment profiles and early termination provisions.

 

The last session of the day was Dispute Management, with convenor Richard Stephens,[11] speakers Mark Culbert,[12] Graham Cunningham[13] and Peter Susman QC.[14] This topic has been addressed in previous annual events and it does not appear that the issue has moved on significantly. The consensus seemed to be that mediation is still the method of choice. Standard clauses are often not fit for purpose and lawyers should pay attention to adapt such standards to the circumstances.

 

The dinner on the Friday night ended with a presentation by Professor Jonathan Zittrain, from the University of Oxford. Few had heard him speak before, but it’s a talented speaker who can educate a room of lawyers on Internet architecture, bottlenecks, the role of the little people, and also make the room of lawyers laugh. I hope he’s invited for a return visit.

 

As John Yates[15] said in his lecture, the Friday evening drinks were a relatively sedate affair by some year’s standards. Probably due to the out-of-town location of the hotel – it makes it so much harder to trawl the student bars. Hangovers did not exceed a 3 on a 10 scale.

 

The Saturday format is now shorter than previous years, ending at midday, which is a good decision judging by the high attendance to all sessions. The session started with a discussion on contracting vehicles with convenor Jonathan Smith,[16] speakers John Yates and Sarah Sasse,[17] and panellist Martin Jacobs.[18] The emphasis in John’s lecture was the customer’s increasing attempts to control the ‘how’ no matter which contracting vehicle is used. Sarah Sasse’s talk focussed on IPR issues of ownership and control, and included some limits to the standard indemnity wording that were new to some in the audience judging by the sudden scribbling of notes in the room. The last sessions of the day covered Freedom of Information, with convenor David Berry[19]  and speakers Marcus Turle[20] and Anthony Kenny,[21] and panellists Ayodele Ajose[22] and Roger Bickerstaff.[23] There was some interesting discussion on the acknowledgement that Gateway reviews can be considered ‘audit review’, the changing nature of confidentiality, and how the release of commercial non-sensitive information can affect the value of the protected information.

 

It was said by John Yates that the role of the lawyer is changing into that of a skilled consultant/negotiator/contract manager. Perhaps the limited lack of references to statute or case law or the recent amendments to the procurement regulations is a reflection of this. Of course the Dispute discussions on the Friday, and the Freedom of Information Act lectures on the Saturday couldn’t really avoid it.

 

Was anything missing? It would have been good to hear some discussion of the impact of the recent 2006 guidance and amendments to the procurement regulations and the impact on negotiations to date. It seemed slightly strange for a conference focussed on the public sector to make no reference to it at all.

 

SCL have met previous venue criticisms by choosing a hotel that is easy to get to, is not far from London and has clean large rooms, gym facilities and parking to spare. It also has a conference room of adequate size with quiet air conditioning, spacious rooms, and well trained technical staff who can keep the PowerPoint on and microphones from squealing. Excellent, efficient, and everything we asked for, except that the place was a soulless corporate shell. A lesson for everyone about being careful what you wish for. Personally, I take back every comment I ever gave on the feedback sheet in previous years. Bring back the Bath Spa.

 

Hazel Randall is a Solicitor in the Technology Department at DLA Piper in Leeds.