Section 6: Example of The Light Touch Regime In Practice
The following pages set out a suggested route that a local authority may adopt when considering a provider’s suitability to deliver the funded ELC entitlement and establish a public contract.
41. This guidance has been prepared to set out a suggested route, where a local authority is establishing a public contract, under the Light Touch Regime. It highlights best practice from current processes relevant to the ELC marketplace requirements.
42. The most important aspects of an ELC procurement process are shown below:
- Accessible: The process used must be flexible enough to allow new private and third sector providers, including childminders, to become funded providers at regular intervals and this must be clearly stated when advertising and publicising the opportunity to become a funded provider.
- Simple: The process for private and third sector providers is easy to follow and understand.
- Transparent: Private and third sector providers must be aware of what is expected of them at the outset (for example, that they must provide evidence that they meet the National Standard criteria). The rationale and frequency of the local authority process for considering new private and third sector providers, including childminders, must be open and transparent.
- ProcurementPrinciples: Where the local authority is undertaking a procurement process under the Light Touch Regime and awards are subject to the procurement rules, the local authority must adhere to the procurement principles deriving, namely:
- treat providers equally and without discrimination; and
- act in a transparent and proportionate manner.
43. Box 1 describes an approach to developing, advertising and awarding a ‘flexible framework’ arrangement under the Light Touch Regime.
44. A flexible framework is an arrangement which can operate in a similar way to a framework agreement, where private and third sector providers, including childminders, are invited to complete an application form for the local authority to consider.
45. A successful application will result in providers being admitted to the flexible framework as a funded provider.
46. This will mean that the funded provider can begin to offer the funded hours to children and their families. The local authority will have a contractually compliant arrangement with the funded provider, supporting consistency and continuity for the child’s funded entitlement.
47. Whilst individual local authorities will determine how they monitor whether settings are meeting the National Standard and how they will enter into contracts with funded providers who meet the National Standard, there is strong consensus for simplifying processes across Scotland. This is a key aspect of Funding Follows the Child.
48. Depending on the process a local authority uses to commission the delivery of funded ELC, providers may be required to provide additional information and agree to certain contract conditions to ensure the process complies with the local authorities procedural standing orders, financial regulations and procurement regulations. However, if it is decided that additional information or contractual conditions are required, local authorities must not alter or add to the National Standard criteria.
49. Where the Light Touch Regime applies, additional questions will include those that are detailed in the European Single Procurement Document (Scotland) in respect of mandatory exclusion grounds. In the case of Social and Other Specific Services, which includes ELC provision, the mandatory exclusion grounds (regulations 58(1) to (3) of Public Contracts (Scotland) Regulations 2015) must be applied to all procurements. An organisation can choose to apply the discretionary exclusion grounds and selection criteria and can also choose to use the European Single Procurement Document (Scotland) for this purpose, without amending the questions, and this is recognised as best practice.
50. Separate guidance has also been prepared on how to apply Criteria 8 - Fair Work Practices, including payment of the real Living Wage, when undertaking a procurement process (see Annex A).
6.2: Flexible Framework Process for ELC Funded Providers
Box 1: Flexible Framework Process for ELC Funded Providers
This box sets out an approach for developing, advertising and awarding a ‘flexible framework’ arrangement under the Light Touch Regime.
The approach is split into the following key steps (with a section below setting out the details for each step):
- Step 1: Develop a strategy
- Step 2: Prepare documents
- Step 3: Advertise opportunity and invite applications
- Step 4: Applications are submitted
- Step 5: Review of applications and award of successful providers
- Step 6: Contract mobilisation
- Step 7: Contract management
Step 1: Develop a strategy
1.1 Complete market research and engagement
- Market research and engagement should be undertaken by local authorities with local private and third sector providers, including childminders.
- It should be considered whether evening or weekend engagement sessions need to be held to ensure that ELC setting staff and childminders are able to attend. The local authority may also want to consider engaging with provider bodies to ensure their members are aware of the upcoming opportunity.
- When active consultation is undertaken with the market, including with private and third sector providers (including childminders), local authorities should consider the requirements of the procurement rules where a public tender is in prospect. Further information on this can be found in the Frequently Asked Questions in Section 7.
1.2 Develop a procurement based strategy
- The local authority should create a procurement strategy based on, for example,:
- Market evaluation and engagement;
- Procurement and service requirements including local ELC delivery plans; and,
- Funding Follows the Child and the underpinning National Standard , (with reference to the Operating Guidance).
1.3 Decide the frequency of the process
- The local authority should consider how often they will allow new applications to be submitted throughout the contract period.
Step 2: Prepare documentation
2.1 Develop specification and decide evidence requirements
- The local authority should prepare an application form for private and third sector providers to complete with the necessary evidence to meet the National Standard criteria, and request that those applying confirm they have not engaged in criminal activity (mandatory exclusion grounds). This could be in the form of a European Single Procurement Document.
- Local authorities will be required to align the application form and evidence requested with:
- Law and applicable guidance;
- The National Standard; and,
- The applicable procedural standing orders such as the Contract Standing Orders and Financial Regulations.
- The local authority should prepare an evaluation methodology describing the evidence required and how this will be reviewed at point of application.
- Terms and conditions should be prepared, including, but not limited to:
- the agreed sustainable hourly rate to be paid to a funded provider (and any other payment elements);
- the roles and responsibilities of both parties; and,
- what evidence will be required as part of contract management.
- The local authority will need to prepare a document that outlines the anticipated demand of provision across the local area.
2.2 Decide on the platform to receive applications
- PCS-Tender or another platform, such as the local authority’s website using an e-form solution could be used to receive the application(s).
2.3 Prepare advert
- The local authority prepares a Contract Notice, which includes reference to the National Standard, which sets the minimum requirements necessary to be a funded provider, and all other relevant information.
Step 3: Advertise opportunity and invite applications
3.1 Open the application process
- The local authority will publish the Contract Notice at this point. Where procurement Regulations apply, this must be published on Public Contracts Scotland (PCS) and where thresholds apply, for onward transmission in accordance with applicable law. The advert can also be publicised on the local authority website, through provider bodies or social media, to attract potential new private and third sector providers to apply.
- The advert should include reference to the National Standard, which sets the requirements for all funded providers, and the information required to comply with procurement rules (see regulation 75(1) of the 2015 Regulations), and any other relevant information.
- The advert should clearly state the deadline for applications and inform private and third sector providers of the next application window.
- All the supporting documents must be available from PCS-Tender (or the platform being used).
Step 4: Applications are submitted
- Private and third sector providers, including childminders, are able to review the Contract Notice (on PCS) and supporting documentation (for example, on PCS-Tender) and decide whether to apply.
Step 5: Review of applications and award of successful providers
5.1 Review of applications
- The local authority should review the application in line with the evaluation methodology and, where necessary, seek clarification from potential funded providers.
- Private and third sector providers, including childminders, that have provided sufficient evidence and meet the criteria should be informed that they have been approved as a funded provider.
- Where a private and third sector provider or childminder has not provided sufficient evidence, they will be informed and feedback provided.
- Where the Light Touch Regime thresholds apply, the ‘standstill process’ must be followed (see Part 3 of the 2015 Regulations) in accordance with law and guidance.
5.2 Award of contract
- In the event the ‘standstill process’ passes without formal legal challenge, contract award letters should be issued to successful private and third sector providers, including childminders.
- A Contract Award Notice should be published on PCS, and where thresholds apply, for onward transmission in accordance with applicable law.
Step 6: Contract mobilisation
When starting the contract, the local authority should consider inviting funded providers to a ‘mobilisation’ or induction session to discuss the contract terms and conditions. It is recommended that a mixture of weekday, weekend and evening sessions will ensure most funded providers are able to attend.
Step 7: Contract management
- Due to the monitoring requirements for quality by both the local authority and through Care Inspectorate scrutiny activity, it may be preferred if procurement contract management activity of a routine or repeating nature is kept to a minimum. A review of funded providers may include:
- Assessing financial viability;
- Updating funded providers on local authority policy and practice;
- Involving funded providers in decision making (where relevant and appropriate).
- It is the responsibility of the funded provider to tell the local authority if there are any significant changes to the setting that could affect their contract with the local authority. For example, the results of Care Inspectorate scrutiny activity should be shared with the local authority once this has been published, if not before, and this will allow the local authority to remain informed about whether the setting is meeting the National Standard.
- There may be other circumstances which occur which the local authority will need to be made aware of and it will be for the funded provider to ensure this is communicated in a timely manner so that appropriate support can be offered and decisions about contracting can be made efficiently.