Welcome to ‘Procurement News’.
This newsletter is for all colleagues within the Department of Health and 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. Please sign up to Procurement News
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Procurement Policy Manager
Department of Health and Social Care
Crown Commercial Service customer updates: November 2018
The latest issue (published 8th November 2018) is available here. This month there is news on:
- Highlights from digitech18
- Utilities and fuels customer event
- Latest aggregation opportunity for water
- New technology aggregation to go live for IT hardware
- Help CCS evaluate the new Education Technology framework
- Management Consultancy framework webinars
- Educational events
· The Academies Show – 21st November 2018
- Over 100 speakers for Public Sector Solutions EXPO
- Technology webinar dates
· Crown Hosting Service: 26th November 2018, 11am
· Technology Products: 28th November 2018 12pm
- New Frameworks
· G Cloud 10 (RM1557.10)
· Management Consultancy Framework Two (RM6008)
- Framework Extensions
· Apprenticeship Training (RM3823)
Procurement Policy Notes (PPNs)
All Procurement Policy Notes (PPN’s) are published on the CCS website here.
· No PPNs have been published since the last edition
Joint working – Health Education England and NHS Improvement
On the 23rd October Health Education England (HEE) announced that HEE, NHS Improvement, NHS England and DHSC have agreed the following measures to improve how they will work together:
- HEE will work jointly with NHS Improvement to develop its mandate for 2019/20 onwards. NHS Improvement’s board will sign off the mandate prior to approval by the Secretary of State.
- Subject to any necessary consultations, the NHS Leadership Academy will transfer from HEE to the new NHS Improvement and NHS England People function from 1st April 2019.
- Opportunities will be identified for HEE’s regional teams to align with NHS Improvement/NHS England’s integrated regional teams to build on the strong collaborative working that already exists in support of local health systems.
HEE and NHS Improvement are working with DHSC to develop a joint plan to put in place the new arrangements.
These changes are being implanted to further reinforce the importance of ensuring that National, Regional and local organisations are working together to address workforce priorities.
The full article can be viewed here .
DHSC achieves the Standard CIPS Procurement Excellence Programme
In September, DHSC was awarded the CIPS Procurement Excellence Standard. This is a global standard, positioning the Department as a centre of procurement excellence.
The Standard is made up of five Dimensions with 98 individual statements.
- Leadership and Organisation
- Strategy and Policy
- Process and Systems (Sourcing & Post Contract Management)
- Performance Management
“The Chartered Institute of Procurement and Supply’s approach to enabling us to demonstrate we have reached a global standard was undertaken in a collegiate yet challenging way that really made us think about all aspects of our policies and procedures. Whilst it was hard work – as it should be – the benefits are immeasurable and we are extremely proud to have been accredited with this standard” – Melinda Johnson DHSC Commercial Director
If you would like to know more about the CIPS Procurement Excellence Programme<>, visit the CIPS website. You can take a free Healthcheck to see if you are ready to work to become globally recognised.
[From left to right: Sarah Mayes (Fast Stream), Rachel Berrisford (Deputy Director Procurement), Debbie Wallbank (CIPS), Alan Martin (CIPS), Abigail Coyne (DHSC Procurement Policy), Rick Webb (DHSC Procurement Policy), James Wurr (Fast Stream), Melinda Johnson (DHSC Commercial Director)]
DHSC SME Action Plan
DHSC’s updated SME action plan for 2017-2020 is now available on the internet. The plan sets out how DHSC will achieve its 23% SME target, and how it will contribute towards the Government’s aspiration of 33% of procurement spend going to SMEs by March 2022.
The plan includes actions for a range of categories including:
- Professional Services
- Clinical and Medical
- Social Care
NHS Trusts and Foundation Trusts are not in scope for the Department’s SME targets. Instead, several interventions have been developed with these trusts to stimulate spend with SME. Examples include:
- Developing and maintaining standard terms and conditions of contract for the NHS to use when procuring goods and services
- Running regular training events for both NHS trusts and SMEs seeking to supply to the NHS
- Funding a Professional Skills Network for NHS procurement professionals, which seeks to develop NHS commercial staff to undertake more strategic, value add activities.
Read the full SME action plan here.
Single Use Plastics: Ban on Straws, Stirrers and Cotton Buds
DEFRA are running a consultation on banning the sale and use of cotton buds, plastic stirrers and cotton buds. These products are known for not being disposable and have a negative impact on the environment.
It is hoped that Government can build on previous work to reduce single use plastics. For example, the use of microbeads has been banned and the number of plastic bags in circulation have reduced due to the 5p tax.
Naturally, there will be exemptions to the ban. For example, straws used for medical purposes will continue to be used where no alternative is suitable. A suggestion is to import plastic straws and distribute them to pharmacies who will be able to give them o those with a medical need.
The consultation deadline is 3rd December 2018. Views can be submitted via an online survey.
All documentation can be accessed here.
If you have questions you should contact DEFRA in advance of the closing date.
The full press release from DEFRA accompanying the consultation can be viewed here.
Speaking at the GovTech Summit in Paris, Secretary of State Matt Hancock presented his aspiration to improve the NHS through a more flexible approach to procurement. A suggestion was to move away from fixed process and setting subjective targets.
Hancock stated, “if you have an idea for the improvement of the health system in the UK from use of technology, we want to hear from you, we want to try it, we want to see it work”. An article on his contribution to the summit can be read here.
If you are interested in working in the digital space, CCS and GDS launched a digital buying community. The aim is to create and support a group of buyers in the public and third sector to share information and develop solutions to ongoing challenges.
The digital buying community meets quarterly and includes buyers from central government, local government and health. If you are interested in getting involved with this community, information is available here .
First Among Equals – Incumbent bidder’s inherent advantages Provided by Steve Winfield, GLD
This month’s legal article concerns a recent case that considered the concept of equal treatment and, specifically, what steps does a contracting authority need to take to neutralise the inherent advantage an incumbent provider may have when designing a procurement process?
All procurement professionals know that it is a fundamental principle of procurement law that bidders are treated fairly and equally. The overarching obligation is set out in regulation 18(1) of the Public Contracts Regulations 2015:
“Principles of procurement
18(1) Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.”
The question of how to reconcile any advantage that the incumbent possesses by virtue of its previous experience against the need to ensure equal treatment can be tricky – to what extent does the playing field need to be levelled?
Helpfully a recent case provides some assistance. Proof IT SIA (“Proof”) v European Institute for Gender Equality (“EIGE”) (Case T-10/17) (EU:T:2018:682) was decided by the General Court of the Court of Justice, however, the principles have general application and provide a useful guide to those running procurements. EIGE is, itself, an EU institution which is why the case was hear by the General Court rather than in Lithuania, where it is based.
Proof was an unsuccessful tenderer in a competition to be awarded a framework contract for online services to EIGE and challenged the decision under a number of heads including an allegation that EIGE had breached its equal treatment obligations as it had interpreted award criteria in a manner which gave an unfair advantage to a bidder that had obtained information in performing a previous contract with EIGE.
Proof specifically highlighted an extract from the tender evaluation report which it said showed favouritism:
“the tenderer presents a deep understanding of the objectives of the framework contract that is at the same time holistic and highly specific.”
EIGE, countered by arguing that the winning bid was the most economically advantageous tender rather than due to any advantage caused due to its previous contracts.
The court was not persuaded by Proof’s arguments and restated the principle that incumbents will inevitable have an advantage when bidding and it does not follow that this is unlawful. It is a market advantage obtained as a result of its experience and not unequal treatment.
“…it should be pointed out that the alleged advantage of the successful tenderer, on the assumption that this is proven, is not the consequence of any conduct on the part of the contracting authority. Unless such as contractor were automatically excluded from any new call for tenders … it is in fact inevitable that an advantage will be conferred upon an existing contractor …”
“That fact constitutes an “inherent de facto advantage”
It is perhaps ironic that Proof had itself previously held contracts with EIGE and like the successful tender it was able to, and did, rely on its previous knowledge and relationship which it presented as one of its strengths. However, and despite its assertions the court found that the real reason Proof had not been successful was that its tender was not as comprehensive as the winner’s: “the applicant’s tender…was confined to simply copy-pasting the list of activities and tasks that were mentioned in the tender specification.” The rules of the procurement process had allowed bidders to request additional information from EIGE, however, Proof unlike other bidders neglected to do this.
This case is a useful reminder that, whilst a completion clearly cannot be skewed to ensure an incumbent contractor will automatically be successful in any future tender, it is not automatically unequal treatment to give a bidder credit for “knowing what it knows” as a result of its previous relationship with the contracting authority and excluding an incumbent from bidding or ignoring relevant skills and experience would itself be a breach of fundamental procurement principles.
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