Section 7: Frequently Asked Questions
Step 1: Develop Strategy
1. Are there specific considerations that should be taken into account during market research?
Market research and engagement should be undertaken by local authorities with local private and third sector providers, including childminders.
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.
This includes regulations 41 (Preliminary market consultation) and 42 (Prior involvement of candidates or tenderers) and regulation 53 (Publication at national level) of the Public Contracts (Scotland) Regulations 2015. Local authority procurement and legal advisers will be able to provide local authority-specific advice about how this should be reflected in the processes.
2. Can the procurement process for 3 and 4 year olds, and eligible 2 year olds, be combined?
Ideally, the process for applying to offer funded ELC to 3 and 4 year-olds would be combined with the process for eligible 2 year-olds. The same application process and evidence would simplify the process for providers, as well as streamline the process for local authorities.
Local authorities may wish to consider using a risk-based approach to ensure that the evidence requested is aligned with what the provider is able to provide.
3. Are there Cross Boundary considerations that should be included in the process?
The local authority may want to work with other local authorities that it has cross-boundary placements with to confirm if they can have a shared or similar approach to both the process applied and the contracting arrangements they use for funded provision in private and third sector settings. Such an approach could also help simplify the process for private and third sector providers, including childminders, with settings across more than one local authority, and reduce the potential burden of significant variations in process across authorities.
It may be worth considering what common elements of the process could have a shared or similar approach (for example, the evidence requested in order to assure themselves that the provider meets the National Standard) and those that are distinct to each local authority (for example, insurance levels). This could be signposted to providers to reduce the burden on them.
4. Are there considerations that should be taken into account for the length of contract?
The length of contract will be dependent on a number of local factors. Each local authority will be best placed to decide on the length of contract and the mechanism for renewing this based on local and policy requirements, available resource and local market stability.
The key outcome required from the process is that it delivers the flexibility required to meet the needs of children and their families. Therefore, no matter the length of contract the local authority decides on, it is imperative that the process is flexible enough to permit new applicants throughout its lifetime.
The local authority should ensure that the application process is fit for purpose and delivers the outcomes required of it. To ensure this, the local authority may want to build in flexibility to extend or re-develop the procurement process as required throughout its lifetime. The local authority should clearly state this within the initial application documentation, including the Contract Notice.
Step 2: Prepare documentation
5. What considerations should be made regarding the terms and conditions?
Separate guidance will be available later in 2019 regarding template contract terms and conditions that local authorities may wish to draw on. However, in the first instance, the following points should be considered within the contract terms and conditions:
- The payment terms of the contract, in line with the National Standard payment requirements (as set out in Criteria 9 – Payment Processes in the Operating Guidance);
- How the sustainable rate review process will work, specifically in instances where the local authority is requesting evidence or similar from private and third sector providers and the timeline for this;
- Applicable data protection laws; and,
- Community benefits requirements.
It will also be important to include information on the roles and responsibilities of both parties in the documentation, in line with Funding Follows the Child (see in particular the section on Meaningful and Genuine Partnership Working on pages 10-11 of the Operating Guidance) as this would ensure a clear understanding of how the parties will interact.
6. What considerations should be made about the documentation?
Separate guidance will be available later in 2019 regarding template documentation however, in the first instance, the following points may be considered in the approach to documentation:
- Simplified documentation and forms should be used wherever possible;
- Providers should not need to duplicate their work if existing evidence will show they are meeting the National Standard. For example, information requested by the Care Inspectorate should not need to be changed if it can be submitted in its current format and still show how the setting is meeting the National Standard;
- Applications should be easy to submit (for example, electronically);
- The method for receiving questions during the process should be clearly stated within the documentation and at any training events prior to opening the application process.
Local authorities will be required to ensure that the evidence they request is in line with:
- Law and applicable guidance;
- The National Standard for ELC Providers; and
- The applicable procedural standing orders such as the Contract Standing Orders and Financial Regulations.
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.
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.
Particular provision should be made concerning the real Living Wage criteria, with more information given in Appendix 1.
7. What considerations should be given in the evaluation methodology?
Regardless of the exact process used, the evidence required and how this will be reviewed should be transparent and ensure equal treatment amongst those applying to become funded providers. For example, a local authority process should always include:
- Clear, written evaluation methodology which identifies how the evidence provided will be reviewed to assure the local authority that the provider meets the criteria;
- When and why additional evidence may be requested from the private or third sector provider or childminder; and,
- Clear, written guidance on the length of time between a potential funded provider being unable to provide sufficient evidence to meet the National Standard criteria before and when they can apply again.
8. Does a local authority need to use a European Single Procurement Document?
A European Single Procurement Document, whilst not a requirement under the Light Touch Regime set out in the aforementioned 2015 Regulations, does ensure local authorities can satisfy the requirement in the Light Touch Regime to exclude providers who come within any of the ‘mandatory exclusion grounds’ set out in the Regulations. Those grounds include, for example, where providers have been convicted of certain serious offences, such as money laundering.
However, as the European Single Procurement Document is not mandated within the Light Touch Regime, local authorities have flexibility around how private and third sector providers can be asked to provide information about exclusion grounds and for related ‘selection’ information (for example, Care Inspectorate registration certificates). Scotland Excel will work with local authorities to establish if an alternative format would be preferred and will consider this further when developing template documentation guidance.
9. How can a local authority advertise the opportunity?
As noted above, a local authority should operate a transparent and flexible process, which allows private and third providers, including childminders, to apply at regular intervals throughout the contract period. Whatever the nature of the process, local authorities should ensure that this opportunity is publicised or advertised appropriately and in accordance with the local authority’s own procedural standing orders and related law and policy requirements.
Where a procurement process is followed, the opportunity must be publicised via Public Contracts Scotland and, where thresholds apply, prepared for onward transmission in accordance with applicable law. The opportunity may also be publicised on other media, appropriate to the marketplace. This may include social media, local authority websites or via the provision of indicative information to national provider representative bodies. Where a procurement process is used, local authorities should liaise with their procurement advisers to ensure that the information released is in line with Regulations. For example, it is important to ensure that the same information is given in all public and internal adverts and that the local authority must ensure that information is not issued to local private and third sector providers (including childminders) before the public advert is published.
The local authority may also consider offering training and information events in the lead up to the start of the exercise (or at regular points throughout the year) to explain the relevant processes which apply, provide further information and answer questions from prospective funded providers, with the aim of ensuring a better response to the exercise.
Where a local authority has a flexible process which allows providers to apply at different points during the year, they need to ensure they advertise this opportunity appropriately. This should be done via Public Contracts Scotland, for onwards transmission in accordance with applicable law (where relevant) and other media, appropriate to the marketplace. This may include social media, local authority websites or with the support of national provider representative bodies.
10. What considerations should be made regarding the frequency and duration of the application process?
It is important for the local authority to consider the length of time before the application process re-opens for new private and third sector providers, including childminders, to apply to become a funded provider.
Where a regulated tender procedure is used based on the Light Touch Regime, there are no minimum timelines stated that would affect the duration of the application process, only a general requirement that there should be sufficient time allowed.
In particular, Regulation 76(7) setting out the Light Touch Regime in the Public Procurement (Scotland) Regulations 2015 states that all time limits must be:
“reasonable and proportionate having regard to the nature of the requirement and the needs of service users.”
In the case of ELC, the ‘needs of the service users’ is an important requirement to consider, however, local authorities also need to ensure that this is balanced with the local resource requirement to review evidence appropriately. The local authority may also consider the impact that re-opening the process has on market stability in the area, settings admissions policy and timescales and how they manage their process for allocating spaces.
To manage resources appropriately, the local authority may set specific periods throughout the year where new applications for funded provider status can be made, based on local requirements. It should be noted that long periods between application processes would not reflect the policy objectives and may not provide the flexibility required, therefore, this should be avoided wherever possible.
This is a decision for each local authority, however, information regarding the timescales for applications must be communicated to private and third sector providers, including childminders, as part of the process.
Step 3: Applications are submitted
11. Where applications are accepted continuously, how will they be reviewed?
The local authority may choose to review applications and award funded provider contracts at regular intervals, for example, every 6 months. In this circumstance, the application can be completed at any point, however, these would be reviewed and contracts awarded every 6 months. Another model would be for an application to be submitted and the local authority reviews it when it is received. This would allow new private and third sector providers, including childminders, to apply and be awarded funded provider status continuously. Whichever model is chosen, this should be communicated clearly to potential funded providers as part of the application process.
Step 4: Review of applications and award of successful providers
12. How does a local authority make the documentation available to providers?
The local authority may make the documentation available through PCS, PCS-Tender or another platform, such as the local authority’s website using an e-form solution, to receive the application(s).
Note: The notice used to publicise the opportunity must be published on PCS and where Light Touch Regime thresholds apply, for onward transmission in accordance with applicable law.
13. How does a local authority publicise the contract award?
Publishing a Contract Award Notice is a mandatory requirement and must be published on PCS, where the Light Touch Regime thresholds apply this will include onward transmission in accordance with applicable law, where relevant. If the process is being opened continually or at a regular interval, the local authority will need to consider how to publicise any updates to the established arrangements, for example, when additional funded providers are awarded a contract. The procurement Regulations allow Contract Award Notices to be grouped on a quarterly basis. Regulation 75(4) details that grouped notices must be sent within 30 days of the end of each quarter.
It should be noted that each local authority will be required to follow their Contract Standing Orders for awarding contracts.
Step 5: Contract mobilisation
14. What should be considered once a contract is awarded?
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 6: Contract management
15. What procurement considerations are there for managing contracts with funded providers?
Any contract management activity should be carefully considered by the local authority to ensure that it is undertaken within the commitment of reducing the burden on providers, with any activity of a routine or repeating nature kept to a minimum and based on the level of risk.
It will also be important for the local authority to consider how often they would expect funded providers to re-submit evidence for review. This could be:
- Upon request
- Related to key areas of focus on quality in the local authority area; or
- Following changes to the service or the evidence relating to the National Standard criteria.
It is for the local authority to decide on how this is managed based on availability of resources to manage this monitoring whilst also considering their role as the guarantors of quality.
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