Competition and Contracting in the Transition from CCT to Best Value: Towards a More Reflexive Regulation?
| Published date | 01 June 1999 |
| Date | 01 June 1999 |
| DOI | http://doi.org/10.1111/1467-9299.00154 |
| Author | Peter Vincent‐Jones |
COMPETITION AND CONTRACTING IN THE
TRANSITION FROM CCT TO BEST VALUE:
TOWARDS A MORE REFLEXIVE REGULATION?
PETER VINCENT-JONES
Following publication of the government’s proposals for a statutory framework of
Best Value, and the introduction of regulations increasing the flexibility of CCT
pending its abolition, this paper examines the relationship between the compulsory
regime and its likely successor. First, the paper suggests that the Best Value frame-
work is likely to impose a range of regulatory, monitoring and enforcement
constraints similar in effect to the formal requirements that operate under CCT.
Continuity with Conservative policy will be reinforced practically through tran-
sitional arrangements for the gradual abolition of CCT and the phased introduction
of its replacement. Second, the paper argues that contracting is likely to continue to
have a significant role under the new regime as the natural adjunct to the voluntary
competitive processes that will be the preferred management tools for securing
improvements in service performance. Open tendering and public-private sector
partnership arrangements, both of which imply contractual governance, are given
explicit priority in the consultation document over benchmarking, performance
indicators and other comparative public management mechanisms. Third, the paper
argues that local authorities are likely to want to retain and develop contracting
arrangements that potentially permit a degree of control over service provision that
might not be available were more radical service-providing alternatives to be
adopted, involving the complete transfer of functions outside the public sector
and/or their vesting in independent companies. Finally, the paper assesses the tran-
sition from CCT to Best Value from the theoretical perspective of responsive and
reflexive regulation. Following a brief account of the reflexive failures of CCT, the
paper argues that, although the Best Value framework is characterized by inherently
reflexive processes involving self-review, consultation and standard-setting, its rela-
tive success is likely to depend ultimately both on the tightness with which legis-
lation is drafted and on the manner of its practical interpretation, implementation
and enforcement.
INTRODUCTION
Following publication of the government’s consultation paper on Best
Value (DETR 1998a), and the introduction of regulations increasing the
flexibility of compulsory competitive tendering (CCT) pending its abolition,
the time is ripe for consideration of the relationship between the unpopular
compulsory regime and its likely successor. The Labour government has
made clear that the abolition of CCT will entail neither a shift in the balance
of power back from central to local government, nor a return to the kind
Peter Vincent-Jones is Professor of Law at the University of Central Lancashire, Preston.
Public Administration Vol. 77, No. 2 1999 (273–291)
Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street,
Malden, MA 02148, USA.
274 PETER VINCENT-JONES
of large-scale direct service provision that existed prior to the public sector
reforms of the 1980s. Tony Blair has stated unequivocally:
There can be no monopoly of service delivery by councils; the 1970s will
not be revisited. Delivering quality services means that councils must
forge partnerships with communities, agencies and the private sector . . ..
The Best Value programme will replace the crude dogma of compulsory
competitive tendering . . . (but) there will be zero tolerance of failure:
there is no room for poor performance, whether it is in our schools,
children’s homes, or collecting rubbish (Blair 1997).
Against this background, the present paper argues that the Best Value
framework, if implemented as presently conceived, is likely to impose
informally a range of regulatory, monitoring and enforcement constraints
similar in effect to the formal requirements that operate under CCT. The
argument is that Labour’s current policy on the role of competition in public
services provision is characterized by continuity with the past rather than
by any radical disjunction, and that this continuity will be reinforced practi-
cally through transitional arrangements for the gradual abolition of CCT
and the phased introduction of Best Value. However, the proposed frame-
work is argued to be unclear as to the different possible forms of ‘compe-
tition’ that might help secure increased efficiency and effectiveness, and
their relationship to benchmarking and other public management tech-
niques that might also serve this purpose.
The paper then contends that, although government documents are silent
on this point, contract is likely to continue to have a significant role under
the new regime as the natural adjunct to the voluntary competitive pro-
cesses that will be the preferred management tools for securing improve-
ments in service performance. Where local authorities retain responsibility
for services currently subject to CCT, contract will remain an important
governing instrument. Quite apart from central government pressures, local
authorities are likely to maintain and develop contracting arrangements
that potentially permit a degree of control over service provision that might
not be available were more radical service-providing alternatives to be
adopted. These alternatives might involve the complete transfer of func-
tions outside the public sector and/or their vesting in independent compa-
nies.
Finally, the paper assesses the regulatory transition from CCT to Best
Value from the perspective of responsive and reflexive law and governance.
The development of the concept of responsive law (Nonet and Selznick
1978) in theories of reflexivity and autopoiesis (Teubner 1983, 1986, 1987)
is traced, and the empirical analysis of responsive business regulation in
the private sector (Ayres and Braithwaite 1992) briefly considered. The
paper argues that the responsive regulation of local government is likely
to depend on the installation of self-regulatory processes that respect the
autonomy of local councils. Whereas from this perspective CCT may be
Blackwell Publishers Ltd. 1999
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