My Lords, I have tabled Amendment 271 in this group. At the request of my noble friend Lord Moylan, and with the leave of the Committee, I will also speak to Amendment 486 as my noble friend is unable to join us today.
This Bill is of course about the procurement process, rather than contract management, but Clause 50 wisely requires the setting and publication of performance indicators, which are a key element of contract management. I was always taught that what gets measured gets managed. I cannot envisage a situation where contracts could be managed without some form of measurement that could be converted into performance indicators. Amendment 271 in my name leaves out Clause 50(2), because that allows the contracting authority not to set performance indicators if it considers that
“performance under the contract could not appropriately be assessed by reference to key performance indicators.”
Clause 50(2) is fundamentally unsound because it is tantamount to saying that the contracting authority cannot manage its contract.
There are some kinds of contract—for example, the delivery of health and social care services—where measurement may rely on subjective judgments by the service recipient, but they too can be converted into indicators. I disagree with my noble friend Lord Lansley, who seemed not to like subjective performance indicators; I think they are a perfectly good part of any framework of contract management. Light-touch contracts are of course not covered by Clause 50, and that covers quite a lot of the contracts involving health and social care.
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My question to the Minister is: in what circumstances do the Government think the contracting authorities should be allowed to dispense with performance indicators? Since this is a rather generous let-out clause, what will the Government be doing to monitor that it
is not abused but used only for what I think would be extraordinarily rare contracts where measurements would make no sense whatever?
I turn to Amendment 486. I should let the Committee know that this amendment was originally tabled by my noble friend the Minister when she was a lesser mortal like me. In short, the amendment is designed to ensure that contracting authorities in the public sector do not use their contractual power to force suppliers to accept onerous terms relating to the supplier’s own innovation and intellectual property. The amendment would prohibit restrictions on the ability of the supplier to provide similar or identical services to other purchasers.
Like so many of my noble friend’s amendments to the Bill when she was on the Back Benches, it has the interests of small and medium-sized entities at its heart. There is usually a massive imbalance of power between public authorities that are letting contracts and the SMEs with which they are dealing, and there are many stories of the abuses of such relationships. I very much look forward to what my noble friend will say in response to the amendment.