Procurement News January 2018

Welcome to the first ‘Procurement News’ of 2018.

This newsletter is for all colleagues within the Department of Health & Social Care and its ALBs who have an interest in procurement and commercial activities. You may forward to colleagues within the health family who have an interest in commercial issues. If was forwarded to you, you can sign up to receive future editions.

If you have anything to contribute, feedback or suggestions for future stories please get in touch.

Rick Webb & Abi Coyne Procurement Policy Team Department of Health & Social Care

Crown Commercial Service customer updates: January 2018

The latest issue (published 9th January 2018) is available here. This month there is news on:

• Aggregation Opportunities
• Network Services Customer Engagement Event
• Technology Webinars (Network Services, G-Cloud, Technology Products)
• Latest Case Studies
• New Contract Notices: Technology Expense management (RM3802)
• Frameworks Expiring Shortly: Printing and Specialist Paper (RM1078), Behavioural Insights Consulting and Research (RM3742), Allied Health Professionals Health Science and Emergency Services Temporary Staff (RM959), Telecoms Expense management (RM1014) and market Research (RM1086)
• Recently Expired Frameworks: ConsultancyONE (RM1502), Legal Services (RM919)
• Framework Extensions: Wider Public Sector Travel Management Services (RM1034), Merchant Acquiring Services, Equipment and Payment Gateway Services (RM3702), Crown Office Supplies (RM3723), G-Cloud 9 (RM1557ix)

Procurement Policy Notes (PPNs)

All Procurement Policy Notes (PPN’s) are published on the CCS website here.

The latest PPNs issued in December 2017 are:

Procurement Policy Note 03/17: Changes to Data Protection Legislation & General Data Protection Regulation

This note explains how government buyers should bring existing and future commercial arrangements concerning data processing into line with new Data Protection Legislation.

Procurement Policy Note 04/17: New Threshold Levels 2018 This Procurement Policy Note sets out the new threshold levels that apply from 1 January 2018.

We are expecting imminent publication of a Procurement Policy Note to update the standard Selection Questionnaire (SQ).

Department of Health & Social Care

As you will have heard, the Prime Minister has announced that Jeremy Hunt has been reappointed with an expanded job title as Secretary of State for Health and Social Care.

While the implications are still being worked through, this is a clear and welcome sign that the government will be sharpening its focus on social care in the months ahead, and an important opportunity for us to lead on the forthcoming Social Care Green Paper.

It will also mean that we are now known as the Department of Health and Social Care, and we will be updating our digital platforms and templates with a new, updated corporate logo. You may have spotted it at the top of this newsletter.

Legal Issues

A government department has no separate legal personality – it is an administrative office of the Crown. The new Department of Health and Social Care is already up and running.

The Secretary of State for Health and Social Care has been appointed by virtue of the Royal Prerogative. Prerogative powers and those functions vested in statute to the “Secretary of State” at large may be exercised by the new Secretary of State for Health and Social Care from today (this covers the overwhelming majority of powers). This means that consultation documents, press releases and SIs will now be signed in the name of the new SoS for Health and Social Care.

What does this mean for contracts?

The new SoS Health and Social Care needs to be established as corporation sole to conduct commercial transactions and own property, without the individual who holds the office incurring personal liability. This new corporation sole is a separate legal personality, which will be able to enter into contracts. This corporation sole will be created in a Transfer of Functions order. Until the Transfer of Functions Order comes into force (which will be in 2-3 months’ time), contracts should continue to be made in the name of the SoS Health.

The transfer of functions order will transfer contracts, property and liabilities without the need for compliance with any novation clauses in contracts. No action will need to be taken to novate existing contracts to the new SoS Health and Social Care.

Department of Health & Social Care Single Departmental Plan

The Department of Health has published its single departmental plan setting out the objectives that it will look to achieve over the next 12 months. These include:

1. Keep people healthy and support sustainable public services 2. Transform out of hospital care to keep people living healthier for longer in their community 3. Support the NHS to deliver high quality, safe and sustainable hospital care and secure the right workforce 4. Research and innovate to maximise health and economic productivity 5. Ensure accountability of the health and care system to Parliament and the taxpayer, and create an efficient and effective Department of Health

Further details of the plan can be found here.

Published Brexit Objectives

The Department for Exiting the European Union has published the Single Departmental Plan which sets out the objectives that it is looking to achieve including information on how they will achieve them. These objectives are to:

1. Lead the United Kingdom’s negotiations to leave the EU and establish a deep and special partnership with the EU 2. Work with the Devolved Administrations, Parliament, EU Member States and Institutions, and a wide range of other interested parties throughout the negotiations 3. Lead and coordinate cross-government work to seize the opportunities and ensure a smooth process of exit, including the required domestic legislation, on the best possible terms 4. Continue our work across Whitehall and in Brussels to coordinate European business, exercise our rights and meet our obligations as a member of the EU until we exit 5. Attract, develop and retain great people and organise ourselves flexibly to deliver our objectives efficiently and effectively

Further details including the lead minister and lead officials for each of the objectives can be obtained here.

NAO Modern Slavery Report Summary

The 2015 Modern Slavery Act made provisions for slavery, servitude, forced labour and for human trafficking including for the protection of victims and for an Independent Anti-Slavery Commissioner. Additional legislation was introduced which requires businesses to report what activities they do to prevent human trafficking. A typology of modern slavery offences and offenders in the UK was also published in October 2017.

The NAO has released a report on the Home Office’s progress in reducing modern slavery in England and Wales which covers the following areas:

• Governance of the UK’s response to modern slavery and whether it provides an effective platform to deliver the government’s ambition
• The National Referral Mechanism, and its effectiveness in identifying victims of modern slavery
• The support for potential victims and whether it adequately addresses the victim’s needs
• The performance of police forces and Crown Prosecution Service (CPS) in Prosecuting offenders

A copy of the report is available here

New Open Book Contract Management eLearning

Today sees the launch of a new piece of e-Learning on Civil Service Learning: Open Book Contract Management. This practitioner level learning has been developed jointly by the Commercial and Finance Functions following the pilot of OBCM tools and guides.

Please take a moment to read the background and joint statement by the Heads of Function. An OBCM community of interest has also been created in the GCF Knowledge Hub Network.

The e-learning introduces you to OBCM and the government's approach to it. You are shown how the open book method provides financial, operational and performance transparency between suppliers and government. You will discover how OBCM should help improve value for money outcomes and build mutual understanding and trust between government and its suppliers. In short, you will learn what it is, when to use it and how to apply it.

It is available on Civil Service Learning here.

200 Suppliers signing up for Contracts Finder each week

Contracts Finder has over 22,000 registered suppliers with two thirds being classed as SMEs. Approximately 200 new suppliers sign up to the system each week.

The website regularly features more contract notices than TED and is part of the aim to increase procurement transparency whilst providing more opportunities to SMEs to supply goods and services to the public sector.

Further information is available here

ISO 30401 Knowledge Management Systems – coming in 2018

A new ISO standard for Knowledge Management Systems has been drafted to support organisations to develop management systems that effectively promotes and enables value-creation through knowledge. It will be released later in 2018 following the conclusion of the drafting process.

The guiding principles of the standard include:

1. Nature of Knowledge: knowledge is intangible and complex. Knowledge primarily originates from human experience and insights
2. Value: knowledge is a key source of value for organisations to meet their objectives. The determinable value of knowledge is in its impact on organisational purpose, objectives, policies, processes and performance. Knowledge management is a means of unlocking the potential value of knowledge
3. Focus: knowledge management services the organisational objectives, strategies and needs
4. Adaptive: there is no one knowledge management solution that fits all organisations within all contexts. Organisations may develop their own approach to the scope of knowledge and knowledge management and how to implement these efforts, based on the needs and context
5. Shared Understanding: people create their own knowledge by their own understanding of the input they receive. For shared understanding, knowledge management should include interactions between people, using content, processes and technologies where appropriate
6. Environment: knowledge is not managed directly; knowledge management focuses on managing the working environment thus nurturing the knowledge lifecycle
7. Culture: culture is critical to the effectiveness of knowledge management
8. Iterative: implementation of knowledge management should be phased, incorporating learning and feedback cycles.

CCS Framework Agreements

An updated list of CCS framework agreements has been released this month as is available here. There are 78 agreements under the following headings:

• Buildings (10 agreements)
• Communications (5 agreements)
• Contact Centres (1 agreement)
• Financial Services (7 agreements)
• Fleet (5 agreements)
• Office Services (8 agreements)
• People (17 agreements)
• Research (1 agreement)
• Technology (14 agreements)
• Travel (3 agreements)
• Utilities & Fuel (7 agreements)

The Real World Procurement Series 2018

The first of the 2018 Real World Procurement webinars have been announced. They are part of an international series specifically designed for procurement professionals delivered by real-world experts.

The upcoming webinars include:

• What do I need to know about my Supplier – Linking Supplier Information Management with CSR, GDPR – 13th February 2018
• Breaking through the Tech Hype – 13th March 2018
• Harnessing Supplier Innovation – From the Theoretical to the Practical – 10th April 2018
• Consumerization of B2B Purchasing – 11th September 2018
• Becoming Client-Centered – Putting Stakeholders at the Heart of your Procurement Activity – 9th October 2018
• Linking Organisational Value and Category Management – 13th November 2018

Current Speakers include:

• Peter Smith, Managing Editor Spend Matters
• Kelly Barner, Owner and Managing Director Buyers Meeting Point
• David Atkinson, Managing Director Four Pillars Ltd

Legal Article: Is there a duty to clarify bids?

R (Hersi & Co Solicitors) v The Lord Chancellor (as Successor to the Legal Services Commission) [2017] EWHC 2667 (TCC)

In October 2017, judgment was handed down in the last in a series of claims brought against the LSC relating to the 2010 round of tenders for legal services contracts. The claimant submitted that there was a duty on the contracting authority to seek clarification of a tender and that a changed tender resulting from clarification was acceptable unless the change fundamentally altered the nature of the bid. This was rejected. The judge found that a duty to seek clarification of a tender would arise only in exceptional or limited circumstances.

The claim

The claimant firm of solicitors bid for an immigration services contract in London along with over 400 other firms. However, it did not provide an answer to 4 out of 7 scored questions and failed to score enough marks to gain a contract. It claimed that the defendant should have allowed it to clarify its tender by filling in the missing answers and rescored its response. It also argued that the defendant breached the equal treatment principle in its decision not to allow the claimant to clarify its bid while, it claimed, permitting other tenderers to clarify theirs in comparable circumstances.

The claimant lost. The judge found that there was no ambiguity in the bid, simply an uncompleted section of the form. Following the principles in the Tideland case (Case T-211/02 - Tideland Signal v Commission [2002]) and other cases, he held: (a) the duty to clarify arises only in exceptional or limited circumstances; (b) a duty may arise where the tender is ambiguous but usually will where; (c) the ambiguity probably has a simple explanation and is capable of being easily resolved; (d) it may also arise where there is an error which is simple, material, serious and manifest; and (e) the duty will not arise when any clarification or amendment would in reality lead to the submission of a new tender.

The judge found there was no breach of equal treatment and held: “The long and the short of the position here was that the claimant had failed to answer Questions 5-7 and everyone else who had failed to answer those questions was treated in precisely the same way by the defendant”.

Commentary

The case is a useful reminder on the legal principles relating to clarifying bids. Key points for contracting authorities include the following:

• There is no general duty on a contracting authority to allow a bidder to correct its tender although a duty may arise in certain circumstances e.g. where there is an obvious error which can be easily resolved.
• The contracting authority should make sure the tender documents are clear on the consequences of failing to answer a question (as they were in this case). Consider including an express discretion to reject non-compliant tenders.
• The contracting authority should ensure that if it does allow a correction to one tender, all bidders in the same position are treated equally.