Transcript Costing the future

Sustainable procurement
the legal way!
Mark Cook
Anthony Collins Solicitors LLP
[email protected]
“I Fought the Law, and the Law
Won!”
Unlocking sustainable procurement
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Definitions
Aims and benefits
Corporate commitment
Champions
Core specification
The state of EU law
Good practice
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Sustainable procurement
The Sustainable Procurement Task Force’s
definition of sustainable procurement is:
“a process whereby organisations meet their
needs for goods, services, works and utilities
in a way that achieves value for money on a
whole life basis in terms of generating
benefits to society and the economy, whilst
minimising damage to the environment.”
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Or…
Maximising the difference made to people’s
lives
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Aims and beliefs
• Value for money – more for your £s
• Affordability – finding and releasing
resources to make what matters work better
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Corporate commitment
Powers:
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local authorities - well being
devolved government – sustainable development
UK government – no clear link in legislation, but is
prerogative enough?
Policies?
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Leadership
Mandate
Local authorities and sustainable community strategies
Central government bodies and their responsibilities to
localities
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Champions
Existing organisations –v- new ones
Dedicated staff to:
- determine target outputs
- collate information for procurement process
- determine the monitoring process
- be the specialists in assessing the community
benefits elements of PQQs and tenders
- work with contractors to help them deliver the
requirements
Developing partnering culture
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Core specification
Buy and make a difference
How to address Social Issues in Public Procurement
http://www.ogc.gov.uk/documents/Social_Issues_in_Public_Procurement.pdf
“Core requirements are essential parts of a contract, reflected in
both the specifications and in the conditions of the contract. A
social issue can be a core requirement and reflected in the
specifications provided it is central to the subject of the
procurement and consistent with the public procurement
Regulations.”
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Core specification
Social Issues in Public Procurement
A Guidance Note by the Scottish Procurement Directorate
http://www.scotland.gov.uk/Resource/Doc/116601/0053331.pdf
Drawing up the requirement and drafting the Invitation to
Tender documentation
“As with the incorporation of environmental issues, it is particularly
important to consider social issues early on in the procurement
process, when customers and purchasers are identifying and
developing their requirements. At this stage it is important to
consider the requirement and its potential impact.”
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Core specification
• Does the requirement have particular relevance for any
particular groups? Is that fully reflected in the requirement?
• Has the contracting authority considered all potential social,
economic and environmental benefits that could be delivered as
part of the performance of the contract, whilst still being able to
demonstrate Value for Money?
• Does the requirement affect the authority’s ability to comply with
its positive equality duties and, if so, what considerations are
appropriate?
• Would it be a suitable opportunity for particular groups to
compete for business?
• Is the requirement and associated documentation written in
such a way that it is easily understood by potential bidders who
might not be familiar with public procurement procedures?
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Core specification
• Is the requirement being adequately advertised to attract those
potential bidders?
• Is the requirement sufficiently outcome-based to encourage a
range of solutions?
• Can variants or lots be used effectively to produce a value for
money solution?
• Are the requirements in tender documents and pre-qualification
documents, to assess financial standing and technical capacity,
for example, appropriate for the size and associated risk of the
requirement?
• Are the conditions of contract written in simple language and not
too onerous in relation to the nature of the requirement and its
associated risk?
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The state of EU law
• Altogether now: Consolidated Directive
• The direction of case law:
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don’t specify “local”
policy basis enables purchasing requirement
make sure you can verify what you are saying
don’t treat public services workers differently from other
private sector workers
• Interpretative communications and other guidance
• Tensions between free market and social policy
agenda
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The Consolidated Directive
Recital 1:
This Directive is based on Court of Justice case-law, in particular
case-law on award criteria, which clarifies the possibilities for the
contracting authorities to meet the needs of the public concerned,
including in the environmental and/or social area, provided that
such criteria are linked to the subject-matter of the contract, do not
confer an unrestricted freedom of choice on the contracting
authority, are expressly mentioned and comply with the
fundamental principles mentioned in recital 2.
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The Consolidated Directive (2)
Recital 33:
Contract performance conditions are compatible with this Directive
provided that they are not directly or indirectly discriminatory and are
indicated in the contract notice or in the contract documents. They may, in
particular, be intended to favour on-site vocational training, the
employment of people experiencing particular difficulty in achieving
integration, the fight against unemployment or the protection of the
environment. For instance, mention may be made, amongst other things,
of the requirements – applicable during performance of the contract – to
recruit long-term job-seekers or to implement training measures for the
unemployed or young persons, to comply in substance with the provisions
of the basic International Labour Organisation (ILO) Conventions,
assuming that such provisions have not been implemented in national law,
and to recruit more handicapped persons than are required under national
legislation.
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The Consolidated Directive (3)
Recital 46:
In order to guarantee equal treatment, the criteria for the award of
the contract should enable tenders to be compared and assessed
objectively.
If these conditions are fulfilled, economic and
qualitative criteria for the award of the contract, such as meeting
environmental requirements, may enable the contracting authority
to meet the needs of the public concerned, as expressed in the
specifications of the contract. Under the same conditions a
contracting authority may use criteria aiming to meet social
requirements, in response in particular to the needs – defined in
the specifications on the contract – of particularly disadvantaged
groups of people to which those receiving/using the works,
supplies or services which are the object of the contract belong.
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The Consolidated Directive (4)
Article 26:
Contracting authorities may lay down special conditions relating to
the performance of a contract, provided that these are compatible
with Community law and are indicated in the contract notice or in
the specifications. The conditions governing the performance of a
contract may, in particular, concern social and environmental
considerations.
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Public Contracts Regulations
2006
Regulation 39
(1) A contracting authority may stipulate conditions relating to the
performance of a public contract, provided that those
conditions are compatible with Community law and are
indicated in:
(a) the contract notice and the contract documents; or
(b) the contract documents
(2) The conditions referred to in paragraph (1) may, in particular,
include social and environmental considerations
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Procurement: good practice
Core specification
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Check powers
Identify policy basis for action (short term)
Adopt an explicit policy (longer term)
Include in Business Case
Include in the core requirements – ensure nondiscriminatory
Include reference in Contract Notices
Include PQQ and spec.
Use in the award process
Deliver through a ‘partnering approach’
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Procurement: Good Practice
The Subject Matter of the Contract
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Remember: your requirements must be relevant to the subject
matter of the contract.
BUT
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The subject matter of a contract is determined by what the authority
is actually buying. The extent to which social and environmental
factors are part of this process will depend on the particular
purchase, and the priorities of the relevant department.
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Procurement: Good Practice
Award Criteria
• Most criteria can be made to be objective
• The more important questions is: is it measurable?
– Use external benchmarks where available – e.g. Soil Association
measures for organic food – and remember to allow equivalents
– Could a reduction in crime be measured via indicators such as the
number of windows broken?
• Something that is not measurable smacks of being a ‘best
endeavours’ or optional extra, rather than a requirement
• Worth each sector identifying criteria that are measurable and
sharing this good practice
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Intelligent Commissioning
• The commissioning authority should translate
indicators (such as those within the LAA) into
measurable requirements.
• DON’T leave this to your providers. You cannot
expect to provide vague specifications and receive
specific results.
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Pushing the Envelope
You may wish to push the envelope. But
remember this can lead to challenge!
It can sometime be better to choose a
method which will minimise the risk of
query and challenge.
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