Procurement of care and support services: best practice guidance - updated June 2021

Part 1 – Introduction and context

The previous version of this publication has been archived at: Procurement of care and support services: best practice guidance.

1. Introduction

1.1 Procuring care and support services is a complex area. It requires special consideration within a public body's overall approach to the procurement of goods and services. This is because the quality or availability of these services can have a significant impact on the quality of life and health of people who might use these services as well as their carers^[1]. Also, services are becoming increasingly personalised to better meet people's needs which, in turn, has implications for how support is planned and purchased.

1.2 For these reasons, these types of services are often purchased differently to other services. That is, a public body has some flexibility to decide how to handle these contracts on a case-by-case basis. For example, it can decide how it applies the principles of procurement (i.e. equal treatment and non-discrimination, and transparency and proportionality) that apply to public procurements. A public body should consider other key principles which respect, protect and promote human rights. It also has a duty of care in relation to people with social care and support needs.

1.3 This best-practice guidance has been updated to reflect changes that have occurred as a result of the UK's exit from the EU at 11pm on 31 December 2020.

1.4 This guidance complements statutory guidance produced under the Procurement Reform (Scotland) Act 2014 ('the Act') which includes guidance on the procurement of wider health or social care services. When procuring health or social care services (which includes care and support services) public bodies must have regard to that statutory guidance which covers the main legal rules applying to the procurement of those services.

1.5 A public body should also take account of this best-practice guidance specifically when procuring care and support services. It applies to any contract where the estimated value is equal to, or greater than, £50,000 for goods and services which are not otherwise exempt from regulation. It has been updated to outline all other critical considerations including wider principles that a public body should consider when procuring these important services.

1.6 This guidance has been produced together with, and has been endorsed by, a Reference Group involving key stakeholder interests. Those organisations represented on the Reference Group are similar to those that contributed to the development of the 2010 Guidance and are listed at Annex 2. The Reference Group's view is that the effective implementation of this guidance is essential to the continued delivery of improvements in the procurement of care and support services.

This guidance applies to all procurements which commence on or after 18 April 2016. It is best practice guidance and does not constitute legal advice. A public body should always seek its own legal advice where it is procuring a care and support service.

1.7 For the purposes of this best-practice guidance the term 'public body' describes the various organisations which procure care and support services. For example, this could include NHS boards, criminal justice organisations and housing organisations.

Integration Joint Boards^[2] are not able to contract or hold contracts with third parties as contractual arrangements remain with either the local authority or NHS Board. They are responsible, however, for the production of Strategic Commissioning Plans thereby providing some direction and oversight of what should be procured.

1.8 For the purposes of this guidance, any references to wider health or social care services includes care and support.

Rationale for guidance: New procurement rules for health or social care services (including care and support services) and other changes

1.9 As from 18 April 2016 a key change to the public procurement rules is that the former distinction between Part A and Part B service contracts has been abolished and a new 'light-touch' regime has been introduced for certain services. This includes health and social care services and is the main reason for the update to this best-practice guidance.

1.10 Frontline services are also operating in a different adult health and social care environment from that under which the 2010 guidance was first introduced. This is another reason why an update to that guidance is appropriate now.

1.11 Overall, this guidance describes the changes to the procurement rules and reinforces a set of best-practice considerations (first set by the 2010 guidance) principally for the procurement of care and support services. Specifically, it provides some information on the changed policy and legal context and outlines some key considerations for a public body to take account of.

2. Purpose of This Guidance and Who Should Use It

2.1 The purpose of this document is to provide best-practice guidance for use largely by a public body (see paragraph 1.7) in Scotland where it is procuring care and/or support services from external suppliers. It has been developed to support all staff involved in the procurement (see definition of procurement in the text box at paragraph 2.3) of these services, including senior managers, commissioning and contracts officers, care managers, legal officers and finance officers. It will also be of interest to regulators and those responsible for auditing the commissioning of services and to service providers, people who use services and also their carers.

Services covered by this guidance

2.2 A list of the services covered by this guidance can be found in annex 7. Wider health services are largely not covered by this guidance.

Definitions of public procurement, strategic commissioning and the Act

2.3 The text box below broadly describes what is meant by public procurement and the relationship between it and strategic commissioning.

Definition of public procurement

Procurement is the process by which a public body buys goods (e.g. books and computers), works (e.g. building roads, hospitals) and services (e.g. care services) from external suppliers. It is often one element of a wider strategic commissioning process.

How does public procurement relate to strategic commissioning?

National guidance on strategic commissioning defines it as: 'the term used for all the activities involved in assessing and forecasting needs, linking investment to agreed desired outcomes, considering options, planning the nature, range and quality of future services and working in partnership to put these in place.' It is a strategic assessment usually undertaken by local authorities when forecasting overall need for their areas. The Integration Joint Boards - although not directly responsible for procuring - have responsibility for the development of Strategic Commissioning Plans thereby providing some direction and oversight of what should be procured.

Procurement Reform (Scotland) Act 2014

These links - between first planning an overall need (commissioning) and then actually buying the service (procurement) - have been reinforced by the Procurement Reform (Scotland) Act 2014. That Act requires a public body to prepare a procurement strategy covering all of its regulated procurements where the estimated sum of those procurements, in any given year, is expected to be equal to, or greater than, £5 million. See section 15 of the Act for more detail about procurement strategies.

Where this guidance does not apply

2.4 Procurement is not the only option available to a public body when securing services. There are other options - for example in-house delivery - which are outwith the scope of this guidance. This guidance is, instead, only for use where a public body is procuring a service from an external supplier.

Procurement legal and policy context

2.5 Overall, this procurement-focused guidance is intended to help a public body interpret and be compliant with the public procurement rules, introduced by The Public Contracts (Scotland) Regulations 2015, The Procurement (Scotland) Regulations 2016 and the Act, specifically when procuring care and support services.

Public procurement legal framework

2.6 Public procurement is governed by a legal framework, which includes:

• the principles of procurement
• national legislation^[3]
• case law

In combination, this legal framework establishes procedures that must be followed by a public body whenever it purchases goods, works or services from external suppliers or service providers. See paragraph 2.9 for definition/relevance of case law.

Principles of procurement

2.7 The principles of equal treatment and non-discrimination, and transparency and proportionality should be considered in all relevant procurement activities.

Scottish regulations and rules specific to care and support services contracts

2.8 The Public Contracts (Scotland) Regulations 2015 describe the detailed procedural rules that a public body ordinarily follows when buying goods and services regarding care and support contracts equal to or greater than the threshold specified by the Public Contracts (Scotland) Regulations 2015 and as amended by the Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020. This is set at £663,540 from 11pm on 31 December 2020 (see Scottish Procurement Policy Notes (SPPNs) for any updates).

Case law

2.9 Decisions of the courts provide interpretation of the principles and the Regulations, and can establish precedents which must be observed.

Key policies linked to the procurement of care and support services contracts

2.10 Together with the specific, legal procurement considerations, the following legislation and policies are also relevant to this guidance and are essential to the effective procurement of care and support services. Principally, these include the integration of adult health and social care, self-directed support and human rights and equality legislation. These are summarised below.

Adult health and social care integration

2.11 Adult health and social care integration is about ensuring that people who use, or might need to use services, get the right care and support whatever their assessed needs or desired outcomes at any point in their care journey.

2.12 The Public Bodies (Joint Working) (Scotland) Act 2014 provides the legislative framework for the integration of health and social care services across Scotland. It requires the local integration of these services with statutory partners (health boards and local authorities) deciding locally whether to include children's health and social care services, criminal justice, social work and housing support services in their integrated arrangements. That Act has put in place:

• nationally agreed outcomes, which will apply across health and social care, for which NHS boards and local authorities will be held jointly accountable
• a requirement on NHS boards and local authorities to integrate health and social care budgets, the legislation listing those functions and budgets that must be delegated as a minimum
• a requirement on partnerships to strengthen the role of clinicians, care professionals and third/independent sectors in the planning and delivery of services

2.13 That Act places various duties on the Integration Authorities established by it. These authorities are either Integration Joint Boards, or, health boards and/or local authorities acting as lead agencies to create a 'strategic plan' for the integrated functions and budgets that they control. Integration planning and delivery principles guide all integration activity in order to achieve the national health and wellbeing outcomes See Strategic Commissioning Plans Guidance for further information.

Self-Directed Support (SDS)

2.14 Self-Directed Support, or SDS, is targeted at empowering people and putting the principles of independent living into practice. It enables individuals to take different degrees of control directing care or support that they need to live more independently. The Social Care (Self-Directed Support) (Scotland) Act 2013 (the 'SDS Act') gives people a range of options to decide how much control they wish to have over how their social care needs are met. It places firm duties on local authorities to give people, and their carers, informed choices as to how they will receive that support. See Statutory Guidance to accompany the Social Care (Self-Directed Support) (Scotland) Act 2013 for further information.

2.15 As a result of SDS policy and legislation, the Scottish Government expects local authorities to give people the freedom that they need to choose care packages which suit their needs. Section 19 of the SDS Act makes clear that a local authority, through its approach to commissioning should ensure, as far as is reasonably practicable, a range of providers and supports in its area.

Human rights

2.16 A public body should apply the human rights principles of fairness, equality, respect and autonomy where procuring care or support services. Individuals should be free to control their own lives and to make properly informed choices. That includes being able to participate effectively where decisions are made by a public body which impact upon their rights (see key considerations described at paragraph 4.3). The needs and rights of carers and families must be similarly recognised and respected. A public body should ensure that it provides appropriate information and assistance.

2.17 These considerations apply whether services are delivered directly, or are procured, from third parties.

2.18 For that reason as a matter of general policy, and good practice, a public body is expected to ensure that it is properly informed in relation to its obligations. The specific human rights obligations of public bodies in Scotland are defined in more detail in domestic legislation and in international treaties. Further information on these obligations is available on the Scottish Government website - Coordinating international human rights treaty obligations.

2.19 A public body should also be mindful of its responsibilities as a duty bearer in relation to the United Nations Convention on the Rights of the Child (UNCRC). Specified public bodies should be aware of the duties under section 2 of the Children and Young People (Scotland) Act 2014 in relation to the UNCRC to be commenced in April 2017.

Whatever the source of relevant human rights - European Convention of Human Rights 1950 (ECHR), other international treaties or EU law - the responsibilities of public bodies cannot be delegated or transferred. That means that a public body will always remain accountable for a breach of human rights caused by companies or individuals who deliver services on its behalf. The fact that a service is carried out under contract does not remove the requirement for a public body to respect, protect and promote human rights. As part of that it must ensure that all service providers working on its behalf have clear and effective policies and procedures which will enable it to safeguard and uphold human rights.

Equality

2.20 The Equality Act 2010 includes a public sector equality duty (PSED) which requires public bodies listed in schedule 19 of that Act to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people with protected characteristics. The PSED also applies to any other organisation when it is carrying out a public function, for the purpose of that function. The PSED cannot be delegated. The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 introduced Scottish specific equality duties to help public bodies meet the requirements of the PSED. The Scottish specific equality duties include a requirement to equality impact assess new or revised policies and practices and publish the results. Also, a procurement equality duty under regulation 9 of The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 places a requirement on a public body to report (every other year) on how its procurement policy and activity has contributed to achieving the requirements of the Equality Act 2010. Information about how equality considerations apply in the procurement process is available on the Scottish Government website.

Local Government in Scotland Act 2003

2.21 Under the Local Government in Scotland Act 2003, a local authority has a statutory duty to secure 'best value' in the performance of its functions. The legislation provides that a local authority must maintain an appropriate balance between the quality and cost of directly provided public services and also services purchased from external service providers, having regard to efficiency, effectiveness, economy, equal opportunities and sustainable development. It also gives a local authority the power to do anything that it considers is likely to promote or improve the wellbeing of communities and individuals within those communities.

Linked Statutory Guidance

2.22 This guidance is one of a set of documents that support the implementation of the public procurement rules in Scotland. As mentioned at paragraph 1.4 the best-practice guidance complements chapter 6 of the Procurement Reform (Scotland) Act 2014: statutory guidance which public bodies should also have regard to for procurement of health or social care services. Other key statutory guidance is described briefly in the following paragraphs.

2.23 The Scottish Government has published statutory guidance on fair work and procurement. A bidder's approach to fair work practices can have a direct impact on the quality of services it delivers. Fair work practices will be particularly relevant where the quality of the service being delivered is directly affected by the quality of the workforce engaged in the contract. For example, the continuity and quality of care and support services are likely to be closely related to a provider's approach to its workforce in respect of matters relating to recruitment, remuneration and other terms of engagement. As stated in the key considerations described in chapter 4, a public body should ensure that the procurement of care and support services takes account of the importance of a skilled and competent workforce in delivering positive outcomes for people who use services. It should also consider the statutory requirements which may apply to the service and the workforce in relation to the Regulation of Care (Scotland) Act 2001.

2.24 Section 15 of the Act also requires a public body to prepare a procurement strategy covering all of its regulated procurements where the estimated sum of those procurements, in any given year, is expected to be equal to, or greater than, £5 million.

2.25 A public body is required to set out, in its procurement strategy, amongst other things, how its regulated procurements comply with the sustainable procurement duty. The table immediately below illustrates the relationship between a procurement strategy and joint strategic commissioning plans (see Strategic Commissioning Plans Guidance for further information).

The procurement strategy required under the Act is quite different from - and should not be confused with - individual procurement plans that a public body would usually undertake as a matter of routine when carrying out individual procurement exercises.

2.26 Joint Strategic Commissioning Plans pull together the forecast of overall need across a local authority area, together with the availability of services or resources to meet that need and makes recommendations following an option appraisal for how it should be met. The number of key considerations that need to be taken into account in the development and delivery of these various plans are outlined in chapter 4 of this guidance.

Key messages

Procuring care and support services is a complex area. It requires special consideration within a public body's overall approach to the procurement of those services. Many of these services are becoming increasingly personalised.

This means that these care and support services are purchased differently to other services and are broadly subject to two main sets of principles:

• a public body has some discretion in how it complies with the principles (equal treatment and non-discrimination, and transparency and proportionality) that apply to public procurements
• other key principles are those which respect, protect and promote human rights.

A public body also has a duty of care in relation to people with social care and support needs.

Procurement is not the only option available to a public body when providing services. There are other options - e.g. in-house delivery. These other options are outwith the scope of this guidance. Instead, it is only for use where a public body has decided to procure a service from an external supplier.

Overall, this is procurement-focused guidance and is intended to help public bodies interpret, and be compliant with, the procurement rules introduced by the Regulations and the Act.

This guidance applies to all regulated procurements which commence on or after 18 April 2016 and reflects changes that have occurred as a result of the UK's exit from the EU at 11pm on 31 December 2020. It is best practice guidance and does not constitute legal advice. A public body should always seek its own legal advice where it chooses to procure a care and/or support service.

3. Local arrangements

3.1 This chapter summarises some of the policies and procedures that a public body will likely have in place where it is procuring care and support services. There are various responsibilities, the interaction between which, require a public body to give special consideration to its approach to the procurement of care and support services. For example, a public body has a duty of care in relation to people with social care and support needs. It is also subject to the public sector equality duty and is responsible for demonstrating cost effectiveness and securing best value, while maintaining expenditure within available resources and ensuring compliance with procurement legislation.

3.2 All of this means that a public body should have written and approved policies and procedures for the procurement of these services. A checklist (not exhaustive) of considerations which may be taken into account by a public body is described in the table below:

Policies/Procedures should:

1. Comply with all relevant legislation (e.g. procurement, human rights and equality legislation), self-directed support, guidance and local financial regulations/standing orders

2. Identify the roles and responsibilities of all staff involved

3. Outline its policy and approach to the delivery of services in-house

4. Outline arrangements for jointly procuring services with other public bodies

5. Reflect the distinctive and complex needs of vulnerable individuals for whom services are to be purchased

6. Describe how it will promote the involvement of people who use services and their carers in service design and procurement exercises

7. Describe how it will ensure that choice is available to people who use services and its approach to self-directed support

8. Describe how it will communicate with stakeholders prior to, and during, individual procurement exercises

9. Set out how to ensure that staff involved receive the training required to develop and maintain knowledge/skills

10. Explore opportunities for developing collaborative procurement approaches

11. Set out the procurement processes that will be used to select service providers and the circumstances in which these will apply

12. Identify an appropriate range of contracting mechanisms and provide a rationale for selecting different mechanisms, based on best value, the need for service continuity and desired outcomes for individuals

13. Describe local arrangements for contract management, managing its relationship with service providers and service review

14. Set out the transitional arrangements that will be made if a service is transferred to a different service provider or is decommissioned

15. Consider the development of the market and promote partnership working with external service providers

4. Key considerations for procuring care and support services

4.1 This chapter describes those key considerations that bring together all of the critical themes outlined in the preceding chapters. That is, compliance with the public procurement rules combined with the principles of SDS and integration policy and also human rights and equality considerations. These considerations are for a public body to consider before and when procuring care and support services. These are grouped and summarised in the diagram immediately below:

4.2 These key considerations reflect the complexity of procuring care and support services and the challenges associated with upholding the values, delivering high standards and responding to individuals' needs while complying with the procurement legislation and securing best value as described in earlier chapters. Taken together, these serve as a best-practice framework.

4.3 A public body should seek to ensure that its procurement policies and procedures for care and support services reflect these and are informed by its procurement strategy. These should also be used as a framework for evaluating local practice.

• Outcomes - achieve positive outcomes for people who use services and also their carers through the delivery of good quality, flexible and responsive services which meet individuals' needs and respect their rights and which improve the economic, social and environmental wellbeing of a public body's area. For example, see the National Performance Framework.
• National Care Standards - ensure services meet the National Care Standards and adhere to the principles underpinning those standards. That is, to provide safe and compassionate care and support, help promote positive outcomes for people, support early intervention and empower people to live full and healthy lives in a way which upholds their human rights and reflects their needs and wishes.
• Codes of Practice (Scottish Social Services Council) –
  • ensure staff involved in procuring services promote the interests and independence of people who use services and their carers, protect their rights and safety and gain their trust and confidence
  • ensure employers provide learning and development opportunities which enable staff involved in procuring services to strengthen and develop their skills and knowledge
• Fair Work First - ensures the procurement of services, in support of delivering positive outcomes for people who use services, values a workforce that is treated fairly, is well-rewarded, well-motivated, well-led, has access to appropriate opportunities for training and skills development and is a diverse workforce. A public body must have regard to the statutory guidance on fair work and procurement. Public bodies and bidders should also refer to the Fair Work First Guidance.
• Best value - secure best value by balancing quality and cost and having regard to efficiency, effectiveness, economy, equal opportunities and sustainable development. Should also have regard to innovation, the accessibility, continuity, availability and comprehensiveness of services.
• Strategic commissioning - place the procurement of services within the wider context of strategic commissioning, reflecting strategic and service reviews.
• Procurement rules - ensure procurement exercises comply with the principles of procurement (equal treatment and non-discrimination, and transparency and proportionality), the legal requirements of the Procurement Reform (Scotland) Act 2014, The Public Contracts (Scotland) Regulations 2015, The Procurement (Scotland) Regulations 2016, statutory guidance issued under the Act and Scottish public procurement policy generally and including the Scottish specific equality duty.
• Benefit and risk - base strategic decisions concerning the procurement of services on benefit and risk analysis of the potential effects on:
  • the safety and wellbeing of people who use services and their carers
  • the quality and cost of services
  • partnership working with service providers and workforce issues.
• Personalisation - secure personalised services which provide independence, choice and control for people who use services and take account of the specific needs of different circumstances of people who use services.
• Co-production - development of services with, and the empowerment of, people who use care and/or support services and also their carers.
• Leadership - ensure senior managers give a high priority to the procurement of care and support services, setting clear strategic goals and managing performance.
• Partnership - promote collaboration between public bodies and partnership working across the public, private and third sectors to make the best use of the mixed economy of care and bring about cultural change in all sectors.

Summary of key messages from this section:

There are various responsibilities on a public body when procuring care and support services. For example, a public body has a duty of care in relation to people with social care and support needs. It is also responsible for demonstrating cost effectiveness and securing best value, while maintaining expenditure within available resources. The interaction between these responsibilities requires a public body to give special consideration to its approach to the procurement of care and support services.

Chapter 4 describes the key considerations that bring together some of these critical themes (for example compliance with the public procurement rules combined with the principles of SDS and integration policy and also human rights and equality considerations). These key considerations are for a public body to consider before and when procuring care and support services.

5. Linking Strategic Commissioning and Procurement

5.1 This chapter describes the links between strategic commissioning and procurement. That is, once a public body has chosen to procure a care and support service, in accordance with the key considerations described in chapter 4, the procurement of those services should be placed within the wider context of strategic commissioning. This is reflected in the diagram below adapted from a model produced by the Institute of Public Care (IPC). The commissioning cycle (the outer circle in the diagram) should drive procurement activity (the inner circle) and should, in turn, inform the ongoing development of strategic commissioning.

5.2 A public body should be linking strategic and financial planning with assessment and care management and making decisions about how to use resources most effectively to achieve desired outcomes for people. In doing so, a public body may adopt a long-term view which considers the needs of the whole community. Although there is a legal requirement for Integration Joint Boards to develop plans that will be reviewed at least every three years, commissioners should be planning at least 10-15 years ahead and considering a mix of services that will best meet predicted needs, SDS choices and best value.

6. Suggested best-practice for the effective involvement of people who use care services and their Carers/partnership working with service providers

6.1 This chapter describes how a public body, when procuring a care and/or support service might effectively involve people who use those services and their carers.

6.2 In accordance with the key considerations described in chapter 4, it is crucial that the views of people who use services and their carers are considered (aiming, where possible, to engage with a diverse group of service users) in the commissioning and procurement processes for care and support services. It is also important to consider what knowledge, skills and support they will require to participate in the procurement process.

6.3 Consideration should also be given to expectation management taking account of the feasibility and affordability of meeting the wishes and choices expressed.

Personalisation of health and social care services

6.4 As described in the introduction, policy and legal developments in Scotland are increasingly focused on the personalisation of services. This includes the development of the National Strategy on Self-Directed Support in 2010 to help take forward the personalisation of health and social care services. This was given a legislative framework through the Social Care (Self-Directed Support) (Scotland) Act 2013.

6.5 The fundamental principles of SDS are choice and control. Choice is evident where people are able to choose how they live their life, where they live and what they do. People can also have control of the supports they receive by determining the who, what, when and how of that provision.

6.6 SDS is targeted at empowering people and putting the principles of independent living into practice. It describes the ways in which individuals and families can exercise some choice about the way their support needs are met from available resources.

6.7 The National SDS Strategy describes the activity required to mainstream self-directed support. It identifies that service providers and individuals should have shared responsibility for agreeing the best approach to meeting quality of life outcomes. This can be achieved best by commissioning for outcomes.

6.8 As mentioned in chapter 2, SDS includes a number of options for getting support. The person's individual budget can be:

• taken as a direct payment (a cash payment) (Option 1)
• allocated to a provider the individual chooses. The public body or a third party holds the budget but the person is in charge of how it is spent (this is sometimes called an individual service fund) (Option 2)
• the individual can choose a service arranged by a public body (Option 3)
• the individual can choose a mix of these options for different types of support (Option 4)

6.9 SDS also enables people to make some purchases from outwith the traditional provider market and to spot purchase for more general goods and services.

SDS and Procurement

6.10 SDS Option 3 is mainly where this best-practice guidance has some focus.

6.11 There can also be procurement considerations for other elements of SDS, in particular, some aspects of SDS Option 2. This would only be in those circumstances where a public contract is in place - i.e. where a public body has formed a contract with a provider. Where this has been established, there are no legal requirements that stipulate a public body must follow a procurement process to meet the obligations of SDS Option 2. That said, it might choose to include procured services as part of its Option 2 considerations - in some circumstances - where it decides this best matches local need and meets any wider policy aims such as ensuring quality standards. This could be where a public body chooses, for example, to establish a framework of providers. This decision, and decisions about SDS implementation generally, are however largely local operational matters for individual public bodies to consider.

6.12 It is also for a public body to decide whether an existing service should be
re-tendered when a contract expires. This guidance makes clear that, in doing so, it should take account of the procurement rules, local and national policy and legislation and the benefits and risks to those people who use services.

6.13 Given that self-directed support also includes statutory responsibilities, it is important that consideration of the principles and also the mechanisms that are best to promote it should be part of the strategic commissioning process and, where relevant, reflected in individual procurement exercises.

6.14 The SDS Strategy provides a checklist of areas where advancements in self-directed support may impact on procurement activity. These include:

• the extent and measurement of quality of life outcomes and service level satisfaction
• providing information about procurement to citizens
• involving individuals and family carers in the development of commissioning strategies, procurement policies and individual procurement plans
• development of the social and health care market
• new forms of financial planning and financial management
• balancing risks and responsibilities
• systems to deliver direct services or purchase other services in line with personally determined support plans
• aggregating data from support plans to inform procurement exercises
• means to support service purchase by people who use services if this option is chosen
• maintaining quality standards and ensuring cost-effectiveness
• flexibility in service specifications and contracts
• contract monitoring and review

6.15 As policy and legislation on self-directed support is embedded in practice, public bodies will need to continually consider how this is reflected in commissioning strategies and also their local procurement policies and procedures.

Involvement of people who use services and also their carers

'A human rights based approach to social care means that people who use the services participate in their design and delivery. The involvement of communities increases the likelihood that the needs of the community will be met more effectively and thus contribute to achieving better social care. Furthermore, participation helps ensure that the social care system is responsive to the particular needs of disadvantaged groups.' (Scottish Human Rights Commission)

6.16 A public body should consult widely on any proposals for new services. Also, where decisions have to be taken about the continuation of existing services there is a need for more focused engagement with people receiving those services. A public body should take account of the views expressed by people who use services and their carers at the analysis stage (see commissioning cycle diagram in chapter 5) when:

• establishing individual needs and intended outcomes
• analysing existing arrangements for delivering the service
• deciding if a service should be provided, for example in-house, under a shared service arrangement, or if it should be procured from an external service provider

6.17 A public body should also take account of the views, benefits and risks expressed by people who use services and their carers at the planning stage when:

• advertising the requirement and awarding the contract or framework agreement by competition
• developing the service specification
• developing the evaluation criteria
• preparing questions for use in interviews with potential service providers

In doing so, a public body should continue to be careful to ensure compliance with the procurement rules for example by ensuring that any approaches taken do not have the effect of distorting competition or preventing the equal treatment of bidders.

6.18 The views expressed by people who use services and their carers during ongoing consultation, for example during assessments and the development of care plans, should inform the development of individual procurement plans. These should describe when and how a public body will communicate its intentions to people who use services and their carers and seek their views on the particular procurement exercise. These should also describe when and how a public body will communicate the outcome of the procurement exercise.

6.19 A public body should consider the following factors to ensure effective consultation with, and the involvement of, people who use services and their carers:

• timing, method and frequency of communication
• resource implications
• responsibility for communicating with people who use services and their carers
• arrangements for facilitating the involvement of people who use services and their carers
• the appropriate level of involvement, given the nature and scale of the service and diversity of people who use services and their carers
• methods of recording the views expressed by people who use services and their carers

6.20 When determining what type of communication is appropriate for a particular procurement exercise, a public body should consider the preferred methods of people who use services and their carers. It should consider different methods of written communication (taking into account diverse needs to ensure that people who use services are able to participate), for example letters, story board publications and the publication of information on its website. It should consider whether to undertake a survey of people who use services and their carers and how to seek comments from user-led organisations. It should also consider different methods of communicating face to face, for example in open meetings, or meetings with particular groups of people who use services and their carers.

If procurement activity may result in a change of service provider or change to service provision, information about the procurement process should be provided to people who use the services and their carers who may be affected. Where relevant, they should also receive information on the choices available to them and the availability of SDS.

6.21 It is important to consider what knowledge, skills and support people who use services and their carers will require in order to participate in the procurement process. Consideration should be given to using advocacy services to enhance their confidence in participation.

It is important that a public body is very clear when providing guidance to people who use services and their carers about a formal procurement exercise. Consideration must be given to how compliance with the principles of procurement (e.g. equal treatment) can be secured. For example, people who use services and their carers should be made aware, during a procurement process, that there must be no bias towards, or against, service providers that they do, or do not know, or service providers which are established in or outside Scotland. Decisions must be focused on a provider's ability to meet the requirements of the specification in the most efficient way.

The expression of choice from people who use services and their carers in a formal procurement exercise can differ from the choices available more widely through SDS. It is therefore important that a public body manages the expectations of people who use services and their carers taking account of the feasibility and affordability of meeting the wishes and choices expressed. It is important that people who use services and their carers are enabled to make formal representations about any procurement exercise involving their support and are aware of their rights to exercise choice through Self-Directed Support.

Overall, taking account of these considerations, consistent with section 15(5)(b)(ii) of the Act, a public body should set out in its procurement strategy a statement of its general policy on consulting and engaging with those affected by its procurements.

Accessibility of information and terminology

6.22 Where possible, information about local policies and procedures for the procurement of care and support services and proposed service changes should be available in plain language. Consideration should be given to the development of easy-to-understand versions and to providing information in alternative formats. For example, a public body should consider whether information should be provided in paper format or electronically (on websites, by e-mail or via social networks). It should also consider whether there is a need for information to be provided in minority languages and the use of large print, audio tape, Braille, DVD or British Sign Language DVD.

6.23 Communication with people who use services and their carers must take account of individual needs. For example, the use of text messages may be suitable for people with hearing impairments but may be inappropriate for someone with a learning disability. A public body has a duty to make 'reasonable adjustments' under the Disability Discrimination Act 2005 and should evidence what it has done to take account of individual need.

Partnership working with service providers

6.24 The procurement of care and support services should promote partnership working across sectors. Successful partnership working must be built upon openness and transparency, mutual respect and a joint understanding of the roles and responsibilities of each partner and the challenges that they face. To achieve this, as best practice, a public body should:

• recognise service providers' contributions to achieving positive outcomes for people who use services
• involve service providers in the development of local commissioning strategies and local policies and procedures for the procurement of care and support services
• be proactive in involving service providers in service design and the development of service specifications
• in doing so, continue to ensure compliance with the procurement rules - for example by ensuring that there is no conflict of interest which could distort competition or prevent the equal treatment of bidders

6.25 A public body should ensure that its procurement plans for individual procurement exercises describe how and when it will communicate its intentions to service providers. Where the procurement exercise involves an existing service, a public body should ensure that sufficient information is given to incumbent service providers to enable them to:

• direct people who use services to the relevant contact within the public body
• properly inform their staff about developments
• plan for their involvement in the procurement exercise
• respond to requests under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ('TUPE') as amended for information relating to staff transfers

6.26 It should also ensure that its procurement plans describe how it will engage with service providers (for example, by holding an open day) and how service providers will be involved in developing the service specification.

6.27 It is also important to consider the appropriateness of language and terms used in a procurement exercise. For example, although the term 'lots' in a procurement context refers to groups of services and not those who use them, the absence of a clear distinction can be misconstrued. The use of the term 'lots', for example, should therefore be avoided, wherever possible, in documentation relating to the procurement of care and support services. Efforts should be made to ensure that terminology reflects the principles of dignity and respect and that jargon is kept to a minimum.

This guidance focuses on a public body's role in the procurement of care and support services. Accordingly, the preceding paragraphs describe some of the actions that a public body can take to promote effective partnership working with service providers. It should be noted that service providers have specific responsibilities in the procurement process and share responsibility for promoting effective partnership working.

Service continuity

6.28 Any need for service continuity should be a key consideration in the procurement of care and support services. A public body should:

• assess that need when analysing existing arrangements for delivering the service at the analysis stage
• take into account the need for service continuity when analysing the benefits and risks to people who use services and service delivery of advertising the requirement and awarding the contract or framework agreement by competition
• consider the implications of self-directed support
• determine which contracting mechanism (for example use of a framework agreement) will deliver the required outcomes in terms of continuity of care
• determine the appropriate contract duration to ensure continuity of care for people who use services while taking account of the procurement rules and best practice
• allow sufficient time to ensure that services are appropriately registered to undertake the care service functions
• consider what will happen at the end of the contract term and plan accordingly

The need for service continuity should be balanced against the need for service reform and re-design in certain situations to move services forward.

Fair Work First

6.29 As stated in the key considerations in chapter 4 a public body should ensure that the procurement of care and support services considers how to take account of a bidder's approach to fair work practices, including their commitment to progressing towards adopting the Fair Work First criteria (see the statutory guidance on fair work and procurement).

6.30 The nature of care and support services means that the quality of these services is highly dependent on whether a provider has a diverse workforce and whose staff are well-rewarded, well-motivated, well-led and who have appropriate opportunities for training and skills development. This means that a provider's approach to fair work practices would normally be expected to include a commitment to progressing towards adopting the Fair Work First criteria, including an expectation to commit to fair pay for workers (for example, the real Living Wage) and should be evaluated during the procurement process. The Scottish Government considers the payment of the real Living Wage to be a significant indicator of an employer's commitment to fair work practices and that payment of the real Living Wage is one of the ways that an employer can demonstrate that it takes a positive approach to its workforce. Where a provider does not pay its employees the real Living Wage, however, it does not necessarily mean that its approach to its employees fails to satisfy the Fair Work First criteria.

6.31 As part of considering how to approach fair work practices in care and support services, a public body should:

• ensure, in designing services, that it consults with and involves staff and their representatives (including the trades unions) when appraising the options for service delivery
• fully consider the implications of potential staff transfers under the TUPE Regulations
• outline proposals for addressing adopting Fair Work First, in the procurement strategy which could include:
  • considering how to promote suitable staff management practices
  • a fair and equal pay that can include a commitment to supporting the payment of the real Living Wage
  • support for learning and development and stability of employment and hours of work by appropriately defining, in a specification, the level of quality required
• when considering how to weight a question on Fair Work First it is important to be proportionate by:
  • taking into account the likely impact on the quality of the service delivery or the works performed
  • ensuring the appropriate balance between the quality and cost of operating different kinds of care and support services

Key messages

• Where procurement activity results in a change of service provider or change to service provision, information about the procurement process should be provided to people who use the services and their carers who may be affected. They should also receive information about the choices available to them where applicable.
• It is important that a public body is very clear in providing guidance to people who use services and their carers when it is involved in a formal procurement exercise. Consideration must be given to how compliance with the principles of procurement can be secured. There must be no bias towards, or against, service providers which are established in or outside Scotland. Decisions must be focused on providers' ability to meet the requirements of the specification in the most efficient way.
• The expression of choice from people who use services and carers in a formal procurement exercise can differ from the choices available more widely through SDS. It is therefore important that a public body manages the expectations of people who use services and their carers taking account of the feasibility and affordability of meeting the wishes and choices expressed.
• Overall, taking account of these considerations, and in being consistent with section 15(5)(b)(ii) of the Act, a public body should set out in its procurement strategy a statement of its general policy on consulting and engaging with those affected by its procurements.
• Also once a decision to procure services has been taken, the possible application of the procurement rules must be taken into account, notwithstanding the preferences of people who use services or their carers' preferences.
• See annex 5 for a summary of the key actions required by a public body to implement the guidance.