Procurement News April 2019

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Procurement News April 2019

Welcome ,

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 this newsletter 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

Procurement Policy Manager

Department of Health and Social Care

Click on the picture for 15 facts about rabbits

CCS Crown Customer Service customer update

The latest issue (published 9th April 2019) is available here. This month there is news on:

Procurement Policy Notes (PPNs)

All Procurement Policy Notes (PPNs) are published on the CCS website here.

  • No new PPNs have been published since the last edition

Commercial Operating Standards for Government Update

The Government Commercial Function has released updated documents for the Commercial Operating Standards.

Appendix E sets out the assessment framework for determining how organisations adhere to the standards and what scale of their best practice performance. The measurement includes a maturity rating from “In development” to “Best”. There are 7 standards including:

  1. Commercial Strategy, planning and governance
  2. Commercial capability and resourcing
  3. Pre-Procurement
  4. Procure: Procurement and contracting
  5. Manage: Contract Management
  6. Managing categories, markets and supplier relationships
  7. Commercial systems and information

The third document is guidance for those who work on producing and maintaining commercial pipelines. Pipelines falls under Standard 2 metric 2.2.

Social Value Update

Following David Lidington’s announcement on 25th June 2018, Cabinet Office have taken a number of steps to progress the Social Value agenda in Government, working closely with departments.

Below is an update on the programme of work and the associated timelines:

A public consultation was launched on 11th March on the proposed social value approach. The consultation is an opportunity to comment on the metrics, weightings, barriers to bidders and existing policy mandates associated with the approach. The Cabinet Office would be grateful for all responses from relevant colleagues, partner organisations and suppliers.

This consultation closes on 10th June and Government will publish a response by 2nd September.

Work is ongoing to develop and test the guidance and evaluation system. Cabinet Office are interested in reviewing examples of how Social Value has been used in procurement activity. If you wish to contribute any examples, please send them to caroline.gloyne@dhsc.gov.uk.

The team are also continuing to engage with suppliers, industry bodies and departments. A reporting framework and e-learning module will be released.

The aim is to roll out this work is during the first 3 months of 2020, during which departments will be invited to implementation sessions. The go-live date will be on 1st April 2020.

A Procurement Policy Note (PPN) is expected in early 2020.
If you are interested in finding out more about any of this work, please contact Caroline.

G Cloud 11

G Cloud 11 is currently taking applications from suppliers who would like to be included on the next iteration of the framework. per the current timeline, the submission deadline is 8th May 2019 (5pm). Existing suppliers to G Cloud 10 still need to apply to be part of the new framework.

Since its creation, G Cloud has seen £4.36bn of spend, 43% with SMEs. This is likely to continue to develop through G Cloud 11. It is divided into three categories (lots):

  1. cloud hosting, for example content delivery networks or load balancing services
  2. cloud software, for example accounting tools or customer service management software
  3. cloud support, for example migration services or ongoing support

The anticipated start date for G Cloud 11 is 2nd July 2019.

UK Public Sector Staff – CIPS Ethical Procurement and Supply (2019)

The Chartered Institute of Procurement and Supply and the Government Commercial Function have been working together and have developed a specific module for public procurement professionals. This is in addition to the CIPS ethical procurement and supply module that is available to all staff.

If you are a member of CIPS, you need to log in and enter code PS190217. The course will be added to your “My Learning” area.

If you aren’t a CIPS member you can still complete the learning by completing a short registration process. The cost of the module is £5 + VAT.

The article published on the CIPS website can be accessed here.

Election Guidance for Civil Servants

Local elections are taking place on 2nd May 2019.The pre election period for central government began on 11th April.

Cabinet Office has released guidance on conduct for civil servants during the pre election period. The guidance is for non departmental public bodies as well as arms length bodies. During this time civil servants will need to ensure that they continue to carry out their duties in line with the Civil Service Code of Conduct. Specifically, civil servants must:

  • ensure that public resources are not used for party political purposes
  • not undertake any activity that could call into question their political impartiality. This applies to online communication including social media.

There is specific guidance for those working in a position that uses public funds. Departments should consider the timing of decisions and announcements in relation to large/or contentious commercial contracts or grants which could have a bearing on matters relevant to the elections.

In each case, the option for deferral of announcements should be considered. The option of deferring an announcement must be considered against whether failing to release the information would have a political impact. See page 5, section 20 for the full text in relation to public funds.

A complete list of the areas carrying out elections is available in the guidance.

Extension of time limits for bringing a procurement challenge

Provided by Emma Lindsay, GLD

This article considers recent cases relating to the court’s exercise of its discretion to extend the usual 30 day time limit (under Regulation 92 of the Public Contracts Regulations 2015 (PCR 2015)) within which an economic operator is required to begin a procurement challenge. Proceedings are regarded as having been started when a claim form is issued. The short time limits for bringing a procurement challenge are reflective of the need to balance competing interests; so that public contracts can be entered into promptly to afford those who have participated in a tender process some certainty whilst also providing the opportunity to challenge an unlawful procurement process.

The court has the discretion to extend the 30-day time limit (under Regulation 92(4)) where it considers that there is good reason for doing so. The court cannot extend the time limit beyond 3 months from the date that the supplier knew or ought to have known that grounds for starting proceedings had arisen (Regulation 92(5)).

Two cases decided in 2018 appear to suggest different, and possibly conflicting, approaches taken by the court as to what constitutes a good reason for extending the time limit.  The court has previously found reasons such as; a lack of knowledge on the part of an economic operator about the regulations, fear of damaging a relationship with the contracting authority and the fact that an economic operator’s employees are busy with other matters not to be good reasons for extending the time limit.

Time Limit Extended

In Amey Highways Ltd v West Sussex County Council the court agreed to extend the 30 day time limit, finding that there was good reason to do so. The court said that there was no definitive list of what the court would or would not take into account in deciding what might constitute good reason. In this case, Amey was an unsuccessful bidder, having lost out by 0.03 per cent on scoring and Amey had challenged on the basis of manifest error in the scoring. Amey and West Sussex County Council had entered into a “standstill agreement” which had the effect of suspending the running of the limitation period in order to allow for negotiations. Under the standstill agreement the contracting authority provided an undertaking not to raise a defence relating to the time limit for a set period of time. The judge considered that such an explicit undertaking from the contracting authority was good reason to extend the time period and commented that the courts should generally give effect to such undertakings. Following the court’s decision to extend the time limit the contracting authority abandoned the procurement, stating that it intended to re-procure the contract.

Time Limit Not Extended

However, in SRCL Limited v The National Health Service Commissioning Board (NHS England) (previously referred to in procurement news (September 2018) and which followed the Amey case), the court indicated that the courts should not, as a general rule take account of negotiations between the parties when considering whether to extend the time limit and declined to extend the 30 day time limit which meant that SRCL’s claim failed on limitation grounds. SRCL was an unsuccessful bidder (and the incumbent) and had disputed that the two top bids were sustainable. NHS England had agreed to investigate the bids, to delay the award of the contract until the investigation was complete and to allow for challenge after that. SRCL did not issue proceedings in the meantime. When SRCL later issued proceedings (2 months later) the court did not consider that there was a good reason to extend the time limit.

The judge in SRCL confirmed the widely accepted principle that a reason for extension should generally be related to a factor which affects the claimant’s ability to bring a claim – such as an illness or something outside of the claimant’s control. The judge went on to urge claimants to issue proceedings in order to protect themselves.

Conclusions?

The court will always exercise its discretion based upon the facts of each case (so there will always be an element of unpredictability as to the outcome of an application to extend the time limit). A successful limitation argument can be a powerful defence for contracting authorities – providing the potential to stop a claim before it has properly begun (as in SRCL). Conversely the impact of a claimant being granted an extension of time to begin proceedings and the (possible) consequences of that for a contracting authority can be seen in the Amey case. These two recent cases and the differing outcomes leave us with some uncertainty as to when the court may decide that there is good reason for extending the time limit. They also serve to remind us that the 30 day time limit remains very much a live and contentious matter.

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