Changes to the Public Procurement Rules in Scotland Consultation - Analysis of the Responses

Contracts for care, support and other specific services

'Light-touch' regime

The consultation explains that buying some services, such as social and other specific services requires special consideration because these services can have a big impact on the quality of life and health of service users. The new Directives introduce some changes and simplifications to the rules for the award of these contracts including a 'light-touch' regime for handling care and support service contracts.

Q33 We expect to apply only limited rules to contracts for social and other specific services to the person. These will require compliance with the basic Treaty Principles and publication of contract opportunity and award notices as described in this section. Do you agree or disagree that these rules will be sufficient for an effective light-touch regime? Please explain your answer.

Sixty-two respondents said they agreed, five disagreed and eight made other comments.

Sixty respondents went on to comment further, with most making positive comments such as that this proposal seems clear, comprehensive, appropriate, sensible and retains the flexibility required for these types of contracts.

There were also calls for more specific guidance, for example one local authority said: "Many providers however are interpreting the light-touch regime to mean there will no further public tendering. Clear guidance is needed to refute this understanding and to explain the suite of procurement options available. The guidance should be about what 'does' apply rather than 'does not' apply and individual organisations must be able to make decisions based on each set of circumstances". Respondents also wanted to see guidance on a number of areas: to ensure standards are consistent across public bodies; and to ensure continuity and quality of care.

There was also a call, from a union respondent, to include other services that have a significant impact, for example youth work.

Other comments included one local authority voicing concern that more contracts may become subject to the full regulations.

Another from this group was concerned "that this could lead to complete absence of market testing in a complex area". Union respondents wanted to see contracts for health and social care, support and other services delivered by the public sector only.

Representative bodies for the third / equality sector felt there was confusion over how the 2014 Act and the EU Directive interact in respect of care and support services.

There were also calls for:

• Consideration of the position of the Scottish Legal Aid Board.

• Procurement to be a vehicle for maintaining and raising standards of care.
• A statutory organisation commented that blacksmithing should be removed from the list of services.
• The need to ensure providers demonstrate fair employment practices.
• That quality and not cost is the determining factor.

The last point, above, was discussed in the next consultation question.

Q34 We believe that contracts should not be awarded on the basis of price or cost alone? Do you agree or disagree with this position? Please explain why.

Seventy-four agreed, six disagreed and two made other comments.

Sixty-seven of those who agreed commented on this question, with the main theme emerging from respondents being the need to ensure quality of service.

Many respondents called for specific considerations; the main one being the use of a best price-quality ratio. Other factors that respondents felt should be taken into consideration included:

• Training.
• Continuity of care.
• A well paid workforce.
• Fair employment practices.
• Accessibility.
• Sustainability.
• Account management.
• Innovation.
• Social impacts.
• Environmental impacts.
• Fair trade.

One executive body / NDPB respondent, however, also noted that there may be some simple goods contracts where cost can be the most important factor.

There were concerns that public bodies will not base evaluations on quality, for example:

"We can cite an example where a contracting authority said its evaluation process for care at home services would be '100% on quality', yet the price cap applied made it virtually impossible for any provider to offer a high quality service. We would therefore suggest that in ruling out the award of contracts on price alone, Scottish Government makes it clear that price-capping will, in effect, breach this rule". (representative body for the third / equality sector)

There were some calls for the prohibition of reverse auctions in relation to service contracts.

Six respondents who disagreed, along with two who did not specify an answer, also commented.

Most of these respondents, and particularly local authority respondents, felt that lowest price contracts should be allowed in some circumstances and asked that public bodies retain some flexibility in this matter.

There was also a call for guidance to ensure service users are protected during any change in procurement rules.

Statutory guidance - procurements for health or social care services

The Scottish Government proposes to use guidance to set out the processes that should be followed leading to the award of a contract for social or health care services in more detail.

Q35 What are your views about what should be included in this Statutory Guidance? Please explain your answer

Sixty-five respondents, across respondent groups, answered this question, with eight commenting generally that they agree with the proposals contained in the consultation document.

A wide range of other factors were suggested for inclusion and these are summarised below.

Several public bodies suggested that the 2010 Procurement of Care and Support Services Guidance should be used as a basis for guidance; bodies are familiar with this guidance and it covers many of the factors mentioned in the consultation.

Several respondents commented that the guidance will need to take into account EU Treaty Principles; others said the guidance will have to allow public bodies some flexibility and discretion while still ensuring compliance with the principles.

The need for consistency and standardisation across public bodies was again mentioned.

A number of respondents mentioned the need to clarify the relationships between relevant legislation, EU Directives, EU thresholds and procurement rules. One respondent from the third / equality sector said: "We note the current special treatment of social care contracts under the 2014 Act. It will be important to separate proposed guidance for such below EU threshold contracts from the base-line guidance provided for above EU threshold procurement in this area (and indeed any below EU threshold regulated contracts that are not exempt under the 2014 Act.)"

Respondents again stressed the fact that quality is more important than cost, with some union respondents calling for awards based on lowest price to be prohibited. The need to ensure value for money was also raised in a small number of responses.

One representative body for professionals commented: "Contrary to the suggestion made on page 58 of the Consultation, we note that the terms of Article 76 of the Directive do not state that public bodies should consider quality, continuity, affordability, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of services users, the involvement and empowerment of service users and innovation. Rather, the terms of Article 76 oblige Member States to allow contracting authorities the ability to take such matters into account".

A respondent from the third sector / equality group commented "Guidance MUST be clear on aligning social care with the SDS / personalisation agenda". The issue of flexibility or discretion was seen as very important in ensuring a focus on outcomes and enabling public bodies to provide choice for individuals. One local authority said: "A definitive guide on the impact that personalisation has on the commissioning of social care services would be helpful. Examples of different scenarios would be very helpful".

Other respondents also suggested that examples or case studies should be included with the guidance.

Other suggestions included:

• That advertising should be mandatory or the need for adequate advertising.
• That post-contract monitoring and management should be included.
• That bidders should have demonstrable, relevant experience.
• That guidance should refer to experience, suitability and qualifications of staff.
• The need for further consultation once the guidance has been developed.
• The need for service user involvement in compiling guidance.
• That guidance must focus on the needs of the service user and include end-user involvement.
• That guidance should also cover:
• Equalities.
• Continuity of care.
• Client choice and personalisation of services.
• Length of contract.
• Employment practices.
• Pay and conditions.
• Employment standards.
• Staffing levels and staff resources.
• Safety.
• Impact on health.
• Strategic commissioning.

Many respondents wanted to see a minimum of guidance; there were also calls to ensure the guidance is concise, clear, and not too prescriptive nor excessively detailed. A small number of local authorities, however, asked for detailed guidance on all factors discussed in the consultation.

A small number of respondents raised concerns about the areas covered by the consultation document. One local authority felt the areas were too broad and may discourage market testing. A representative body for the third sector felt there could be "a conflict between seeking to apply only limited rules but still follow the treaty principles". A representative body for professionals wanted to see guidance "drafted to be as specific as possible. General exhortations are likely to be ignored and would make it difficult to assess whether due regard has been given to the guidance".

Summary : Contracts for care, support and other specific services

Most respondents:

• Agreed that the proposed rules will be sufficient for an effective light-touch regime.
• Agreed that contracts should not be awarded on the basis of price or cost alone.

A wide range of suggestions were made for inclusion in Statutory Guidance.