5 Model Clauses
To assist public bodies, developers and contractors to include targeted recruitment and training ( TR&T) requirements in their procurement processes the following model clauses have been developed.
Contracting authorities, developers and contractors are advised to obtain their own legal advice about the appropriate procurement process and appropriate clauses for their requirements.
5.1 Policy Statements
The following wording may be adopted in an Authority's Community Plan and over-arching Procurement Strategy and can be replicated in other policy documents, including the business case for a procurement undertaken by any contracting authority Community Plan:
"The Authority will continue to use all of its powers, wherever it can, to do anything it considers will promote or improve the well-being of the area. Steps to be taken include:
- securing representation for black and ethnic minority communities in employment at all levels that is equivalent to their representation in the population;
- developing a workforce that is highly skilled and well motivated and can truly meet the skill needs of the economy;
- building a place where there are far fewer disparities in employment and everyone who wants to can participate in economic success;
- providing residents with the skills to compete for the employment created by new investment in public services and private enterprise;
- encouraging local residents to take up high quality, sustainable employment opportunities."
5.2 Procurement Strategy
"The Authority will seek to implement its aims as stated in its Community Plan of securing skills and employability and equal opportunities in employment. Thiswill be achieved by using in its procurement and development contracts specifications which include, where appropriate, broad regeneration activities which enable the use of both mainstream and additional funding to achieve objectives such as the enhancement of local skills within a broad value for money framework. To this end the Authority may require particular conditions concerning performance of the contract, provided that those conditions are compatible with European Community law and provided that they are stated in the contract notice or in the contract documents. Contract performance conditions may relate in particular to social and environmental considerations relating to the subject matter of the contract."
5.3 OJEU Notice
The inclusion of social requirements in contract conditions must be mentioned in any OJEU notice by a contracting authority. The following model wording is suggested, under the section in the OJEU Notice typically headed "other information".
"Under this [procurement/project] the [contractor/developer] will be required to support the authority's economic and social regeneration objectives. Accordingly, contract performance conditions may relate in particular to social and environmental considerations."24
Where recruitment is included as a requirement of the contract, the Common Procurement Vocabulary ( CPV) for "labour recruitment and the provision of personnel services", CPV 74500000-4, should be included in the list of CPV codes given in the OJEU Notice.
Use of appropriate wording in standard Notices ( e.g.OJEU Notice), for example use of the text set out above reserves the right to take account of social and environmental issues in the award of the contract.
5.4 Pre-Qualification Questionnaire
Where recruitment and training is included as a requirement of the contract the following questions can be asked in the section of the pre-qualification questionnaire that assesses technical capacity and ability:
"Please give examples of your involvement in each of the following:
- generating employment and training opportunities for long-term unemployed people;
- providing training opportunities;
- the development of trade skills in your existing workforce; and
- equal opportunities recruitment procedures.
What was your exact involvement in each of the above activities? Which of the examples you have cited have been more successful, and which have been less successful, and why?"25
The clauses included in Appendix 2 - Raploch Community Benefit Conditions - illustrate a number of key elements that should be included in the Community Benefits section of a specification. However, the specification must be considered on a case by case basis. Some key considerations to take into account are as follows:
5.5.1 Requirements Relevant to the Specific Contract
What requirements are relevant to this specific contract, taking account of:
- the nature of the works or services to be delivered;
- the scale and duration of the contracts;
- the policy priorities and the need for the opportunities that could be provided;
- the most appropriate way to describe and measure the requirement;
- specifying a clear minimum requirement in the tender documentation and contract so that tenderers all bid on an equal basis;
- proportionality, i.e. ensuring the burden placed on the supplier is proportionate to the potential community benefit.
5.5.2 Delivery Support and External Resources
What delivery support and external resources will be available to the contractor and on what terms? How robust is this? Can it be assured over the duration of the contract? It is appropriate to suggest a local agency that is able to provide delivery support to whichever contractor is appointed. It is also appropriate to name sources of trainees. It should be remembered that the source of recruits should not be limited, as this would be contrary to EC principles of non-discrimination and equal treatment.
5.5.3 Information for Monitoring Requirements
What information is required from the contractor in order to monitor and verify the delivery of the Community Benefits? This requirement should result in the provision of data on the items included in the specification but should be manageable for both the contractor and the contracting authority's contract managers. Who will be responsible for contract management in relation to the monitoring information and outcomes, and what are the formal means of doing this?
5.5.4 Validating Outcomes
There should be a robust and transparent method of checking outcomes in the contract to ensure that the contractor delivers the agreed Community Benefits.
5.5.5 Collecting Community Benefits Information in the Tender
What information is required from the bidders at each stage of the award process and how will this be evaluated? It is easier to compare bids if information is provided in a standard format ( e.g. a pro-forma targeted recruitment and training ( TR&T) Method Statement - see Appendix 2). Community Benefit provisions in the tender must be judged only on objective and measurable outcomes. Authorities must only collect information that will be used in evaluating the tender.
5.5.6 Treatment of targeted recruitment and training ( TR&T) Costs
How are the costs associated with the community benefit requirements to be treated in the award process and the contracts? Should the bidders provide a price and cost breakdown with their tender, or are they expected to find additional resources outwith the contract? 26
5.5.7 Additional Information
What additional information on the community benefit requirements will be provided to bidders and at what stage of the procurement process?
The above points should be considered at the stage of developing the Business Case for a procurement since this should cover the 'need, deliverability and affordability' of each element of the contract.
5.6 Contract Conditions - ModelClauses
Specific contract conditions should be developed on a project by project basis to tie the contractor/developer to specific targets and outcomes.
The following model clauses can be used as a starting position for procurements. They are drafted on the basis that the contractor will have supplied a service delivery plan/ method statement satisfactory to the Authority, concerning how they will generate training and employment opportunities. Alternative clauses may be drafted depending on the requirements that have been included in the specification.
5.6.1The [Contractor/Developer] agrees to secure the creation of training opportunities in connection with the [Project] of a total of [number] training weeks in accordance with the [Service Delivery Plan/Method Statement for economic development activities].
5.6.2 The [Contractor/Developer] agrees to secure the creation of at least [number] employment opportunities in connection with the [Project] which are aimed specifically at [detail target group, for example, people who have been unemployed for at least 6 months (including people who first take advantage of training opportunities created under Clause X.1)] and use all reasonable endeavours to fill those posts with such persons.
5.6.3 The [Authority] undertakes to assist the [Contractor/ Developer] and their sub-contractors to provide training and employment opportunities by providing lists of agencies that can assist in the recruitment of suitable trainees/employees, and the identification of potential sub-contractors and suppliers. Any action taken by the Authority or their agents does not imply, and must not be deemed to imply any promise to provide suitable labour/ firms/agencies, and does not imply and must not be deemed to imply that any individuals/ firms/agency referred to the contractors or sub-contractors are suitable for engagement.
5.6.4 The Contractor is required to complete weekly labour monitoring forms in a format to be provided by the Authority, and is responsible for obtaining accurate data from all sub-contractors on site for entry onto the forms. The weekly labour monitoring form must be completed and supplied to the Authority or their agent within 7 days of the end of the week to which it relates.27
5.6.5 To the extent it has not already done so the [Contractor/Developer] shall enter, and shall procure that its Sub-Contractors enter, into the [enter name] Construction Initiative's Employment Charter at the same time as entering into this Agreement.
It is clear from the ' JRF Report' and the SPDSocial issues in Public Procurement note that it is for the individual Authority to decide what the core requirement of the contract should be. Social issues like TR&T and other Community Benefits can be included as core requirements where the procuring body has appropriate powers and policies. Inclusion as core requirements - even if they are given a low weighting in the award process - is the recommended approach.