DHSC Procurement News – April 2018

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Crown Commercial Service customer updates: April 2018

The latest issue (published 5th April 2018) is available here. This month there is news on:

  • GDPR toolkit
  • Help CCS to find a new name for the Mystery Shopper Service
  • Have you had a look at the new CCS website?
  • Aggregation opportunities: mobile voice and data services, fleet
  • Technology webinars: network Services networks, Crown Hosting Services, G-Cloud, Technology Products
  • Upcoming events: Civil Service Live, Procurex Live, Digital and technology at the Public Sector Show
  • Latest Case Studies
  • New Frameworks: Fuel Cards and Associated Services (RM6000), Utilities Management Software, metering and Ancillary Services (RM3800), Supplier Early Payment Solutions (RM6001)
  • Frameworks expiring shortly: Market Research (RM1086), Fuel Cards and Associated Services (RM1027), Contingent LabourONE (RM960)
  • Recently expired frameworks: Allied Health Professionals health Science and Emergency Services Temporary Staff (RM959), Telecoms Expense Management (RM1014)

Framework Extensions: Workforce Management (RM1072)


Procurement Policy Notes (PPNs)

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

01/18: Supply Chain Visibility:
This PPN is about what steps government can take to increase supply chain visibility to help and encourage SMEs when bidding for work. To support this, Contracts Finder has been updated allowing government suppliers to advertise subcontracting opportunities. The requirements of the PPN should be adopted for new procurements commencing from 1st May 2018.

Note: Linked to this PPN, Cabinet Office Minister Oliver Dowden is due to announce proposals to exclude suppliers from major government procurements if they cannot demonstrate fair and effective payment practices with their subcontractors.


Updated – The Green Book: appraisal and evaluation in central government

The Green Book has been updated by HM Treasury. The new version is available here.

It covers the following areas:

  • Policy and programme development
  • All proposals concerning public spending
  • Legislative or regulatory proposals
  • Sale or use of existing government assets – including financial assets
  • Appraisal of a portfolio of programmes and projects • Structural changes in government organisations
  • Taxation and benefit proposals
  • Significant public procurement proposals
  • Major projects
  • Changes to the use of existing public assets and resources

Updated: Public Procurement Policy – CCS

A Contracts Finder user guide has been uploaded to the CCS Public Procurement Policy page.

Other information on this page includes:

  • The procurement policy framework
  • Procurement policies for value for money and savings
  • Procurement policies for promoting greater transparency
  • Procurement policies for supporting wider government policy
  • Procurement Policy Notes

Workplace Services Framework (FM Marketplace Phase 2)

CCS are developing a new framework for workplace services. It falls under phase 2 of the wider FM Marketplace and will include:

• Security
• Catering
• FM Integrator
• Linen & Laundry
• Housing Services
• Defence FM (subject to MOD IAC approval)

The framework webpage will be updated with materials and further information for all suppliers. A copy of the Prior Information Notice is available as well as an introductory briefing presentation.


DHSC prompt payment figures 2017/18

The prompt payment statistics for the first three financial quarters of 2017/18 have been released.

insert table here 4×3

Quarter % of invoices paid within 5 days % of invoices paid within 30 days
April – June 2017 97 100
July – September 2017 97 100
October – December 2017 97 100

A full comparison of the prompt payment statistics for financial years 2017/18, 2016/17 and 2015/16 is available here.


Checking when large businesses pay their suppliers

Under the Sale of goods and services and data protection area of the business and self-employed page there is a tool that reports on:

  • The average time it takes for a large business to pay its suppliers
  • The proportion of payments (for example, invoice payments) that aren’t paid on time.

You have the option of downloading a complete CSV file of all of the reports on the system. Alternatively, you can do individual searches for large businesses.

A large business is a company or limited liability partnership that has at least two of the following:

  • £36 million in turnover
  • £18 million on its balance sheet
  • 250 employees

Businesses falling into this category must publish reports twice a year.


Digital Outcomes and Specialists (DOS) framework refresh from CCS

The DOS framework will be refreshed for a third time this year. This news comes after the announcement that G Cloud 10 will be accepting bids from April. The anticipated start date of the framework is September with bids being invited in July 2018.

The purpose of the framework is to support the public sector with sourcing suppliers who can research, design, build, test and deliver software applications and digital services.

To find out more information about the Digital Outcomes and Specialists framework click here.


Local Elections – 3rd May 2018

There are local elections on Thursday 3rd May. It is important to consider the impact an announcement or policy change will have on local areas holding elections. Mayoral elections will also take place in London (Hackney, Lewisham, Newham and Tower Hamlets) and Sheffield City.

Cabinet Office has issued guidance for civil servants on conduct in the pre-election period. This period started on the 27th March for Local Authorities and 12th April for central government.

It is important that sensitivity is exercised from this time regarding the impact government activity could have on areas holding elections.

The election covers:

  • 32 London Boroughs
  • 34 Metropolitan Districts
  • 17 Unitary District Councils
  • 69 Shire District Councils

A copy of the election cycles by type of local authority in England can be accessed here.


Social Value Act: introductory guide

The Office for Civil Society published an introductory guide for commissioners and policy makers on the Public Services (Social Value) Act 2012 on the 5th April 2018. It provides information on:

• What the Social Value Act is
• What social value looks like in practice
• How social value can be included in the design and specification process
• Practical examples and tips for each of the social, economic and environmental areas

Any general questions on the document should be sent to the Office for Civil Society with procurement related questions referred to Crown Commercial Service.


How sustainable are your procurement practices?
Provided by NHS Employers

The Sustainable Health and Care Campaign is seeking leading examples of sustainability within procurement.

Have you recently changed supplier to reduce your carbon footprint? Have you procured specific equipment because it was ethically sourced? The campaign would like you to be involved.

Procurement and supply chain is a key theme across the inaugural Sustainable Health and Care awards which will be held in November.
Award categories include; sustainability excellence, care and clinical practice, waste and resources and carbon reduction. Evidence on how you have involved, engaged or considered suppliers or could do so in the future is encouraged throughout the award categories.

The campaign will also be highlighting and sharing examples of sustainable procurement as part of Sustainable Health and Care week (25-29 June). Each day of sustainability week will focus on a different theme and there are many different opportunities to highlight your work and encourage others to be more sustainable in their procurement.

The campaign is also hosting an interactive whole-day event in Birmingham on 8 May featuring leading speakers from across the sector including; NHS Improvement, NHS Digital and the Sustainable Development Unit’s regional networks.

The campaign is backed by the Sustainable Development Unit for NHS England and Public Health England. It is supported by the Department for Health and Social Care and 25 major national health and environmental organisations that make up the Cross System Group for sustainable health and care.

Find out more about the campaign, enter the awards and how you can get involved at www.sustainablehealthandcare.org


eLearning: Protecting Human Rights in the Supply Chain

The London Universities Purchasing Consortium (LUPC) is offering free eLearning courses on Protecting Human Rights in the Supply Chain. The courses have been developed in conjunction with APUC and the University of Greenwich.

They cover why protecting human rights is important in the public sector, working through the process of assessing and prioritising risks to measuring and reporting effectiveness.

The e-learning and full Guide for Public Procurement Practitioners can be accessed here.


Single use plastics and the 25 Year Environmental Plan

In January 2018, DEFRA released the 25 Year Environment Plan. High level targets for this plan include:

  • Clean air
  • Clean and plentiful water
  • Thriving plants and wildlife
  • Reducing the risks of harm from environmental hazards
  • Using resources from nature more sustainably and efficiently
  • Enhancing beauty, heritage and engagement with the natural environment
  • Mitigating and adapting to climate change
  • Minimising waste
  • Managing exposure to chemicals
  • Enhancing biosecurity

Plastic falls under the minimising waste category. Single use plastics includes products that are wholly or partly made of plastic and are typically used either once or for a short period of time before being disposed.

Organisations such as the BBC, National Trust and the Foreign and Common Wealth Office have publicised that they are committed to phasing out single use plastics over the next few years.


Legal Article: Reminder on Contractual Interpretation
Provided by GLD

This article will cover the general principles of contractual interpretation and the case of Kason Kek-Gardner Ltd v Process Components Ltd [2017] EWCA Civ 2132 serves as a useful reminder that the language of a contract (including procurement contracts) should not be devalued by reliance on commercial common sense and background.

General principles of contractual interpretation

The following general principles of contractual interpretation have been well established in English case law and will apply whenever there is a question about the meaning of a particular clause or wording in a procurement contract:

  1. The Court will consider the language of the contract in light of how a reasonable person with all of the background information of the parties would understand the contract to mean. This is an objective standard.
  2. The Court will not look at the subjective intentions of the parties or previous negotiations between the parties.
  3. The starting point is that the Court will consider the natural and ordinary meaning of the words used with regard to the document as a whole and the relevant background.
  4. Relevant background information includes factual, legal and regulatory background to the contract.

Background of Kason Kek Gardner Ltd v Process Components Ltd
(The facts of this case have been abbreviated for the purpose of this note.)

Kemutec Powder Technologies owned intellectual property rights in its business. Kemutec entered into an agreement with Process Components Limited (“PC”) which included part of its business and IP rights. Subsequently, Kemutec entered into an agreement with Kason Kek Gardner Ltd (“KKG”) for the sale of other parts of the business and IP rights. The two parties disputed what IP rights were conferred in each sale. PC disputed that it had obtained all of KPT’s IP rights and therefore alleged that no IP rights were transferred to KKG.

The Court was asked to consider which party was the owner of the IP rights in dispute following the agreements with Kemutec and the Court had to consider the correct approach for interpreting the two contracts.

Decision: Contractual Interpretation

KKG argued that for the sake of “commercial common sense the two contracts should be considered and read together so that each party obtained the relevant IP rights for the parts of the business they bought. Whereas, PC argued that the language was clear and that all IP rights had been transferred to it.

The Court highlighted the following principles of contractual interpretation:

  • The subsequent conduct of the parties cannot affect the true interpretation of the agreement, even less the subsequent conduct of strangers to the agreement.
  • Contemporaneous contracts made between the same parties and forming part of a single transaction between the parties can be read together.
  • Admissible background is limited to facts that were known (or reasonable available) to all parties.
  • Declarations of subjective intention about what the contract means are not part of the admissible background.
  • The importance of the language of a contract should not be devalued by reliance on commercial common sense and background.

Therefore, the Court held that the agreement between Kemutec and KKG could not affect the interpretation of the earlier contract made between Kemutec and PC. The contracts were separate transactions and KKG proposed argument placed too much reliance on commercial common sense and background rather than the language of the contract. Therefore, based on the language of the contract, the Court held that the relevant IP rights had been transferred to PC.

Commentary

The above case provides a useful reminder that the Courts are routinely applying the general principles of contractual interpretation. More specifically, the express words of a contract will generally always supersede any alternative interpretations based on commercial common sense and background context. Therefore, it is important that procurement contract documentation is drafted clearly and precisely and contains everything that is necessary to accurately reflect the intentions of the parties at the time.

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