10. Stage 3 of the Procurement Process - Do
10.1 This chapter highlights that the purpose of this stage of the procurement process is to implement the agreed procurement plan and to secure services that will deliver the identified outcomes for people who use those services and also their carers.
Communication with people who use services and their carers
10.2 Having finalised and agreed the procurement plan, a public body should communicate its intentions to people who use the services and also their carers/representatives. It is important that a public body provides clear and unambiguous information at this stage and that this information is tailored to the particular audience.
10.3 In these communications a public body should explain:
- how long it will take to decide who will provide the service;
- what will happen at different times in the process;
- how people who use the services and their carers will be involved in the process;
- who will make the final decisions and how these will be made;
- (where appropriate) why there may be a change in service provider; and,
- how service provision may change as a result of the procurement process.
A public body should also provide contact details for further information.
10.4 A public body should ensure that people who use services and also their carers have help to understand the process and what, if anything, they are being asked about. It should also ensure that these people have sufficient time to consider how they might be affected and to formulate their views before having to respond.
10.5 A public body should consider whether to hold an open day, or workshop, for potential service providers in order to provide additional information about their requirements and to explain how the procurement process will operate. This might not be possible in every procurement exercise because of the level of resource required, but where there is a market interest in the service this approach, where proportionate can be helpful to engage the market in innovative service redesign.
10.6 Electronic tendering enables a purchasing body to manage the procurement process online. It reduces the paperwork involved in tendering exercises, provides an electronic audit trail and allows a public body to provide a faster response to questions and points of clarification during the tender process.
10.7 A public body should ensure that potential service providers are given full instructions on how to access and respond to tender documentation online.
10.8 A public body should determine, at the planning stage whether they will broadly follow one of the procedures in the Public Contracts (Scotland) Regulations 2015 where a public body is competing a requirement for care and support services. A public body should then decide what procedure to follow. Further information on the procurement processes and tender procedures can be found in the Procurement Journey.
10.9 Details of the exclusion and selection process and the European Single Procurement Document (ESPD) can be found in the Procurement Journey.
Evaluation of tenders
10.10 Tender documentation should provide tenderers with background information about the services required, as well as setting out the detailed requirements. Tender documentation will typically comprise instructions to tenderers with the conditions to participate. Information on the tender process and evaluation of tenders can also be found in the Procurement Journey.
10.11 For the procurement for care and support services a public body should consider whether it is appropriate for people who use services and their carers to be involved in decision making, through, for example, participation in site visits and interviews with service providers or representation on the evaluation panel. The participation of these people must be consistent throughout the process. For example if they are involved in interviews with service providers, they must participate in all of the interviews arranged with service providers. Care must be taken, when involving people who use services and also their carers in the evaluation of tenders, to ensure that they:
- understand the evaluation process and are clear about their role in it;
- understand the criteria against which tenderers are to be evaluated;
- understand their obligation to be objective and impartial and to treat tenderers equally;
- understand issues relating to the commercial confidentiality of service providers;
- are able to commit the necessary time; and
- receive appropriate training and support.
10.12 The involvement of people who use services and their carers in decision making should be considered on a case-by-case basis. It may, for example, be appropriate to involve them in the evaluation of tenders for the delivery of a discrete service for a small number of individuals.
Contract award decision
10.13 Specifically in relation to the procurement for care and support services, on the award of a contract or conclusion of a framework agreement, public bodies should communicate the outcome of the procurement exercise to people who use services and also their carers.
10.14 A service provider should notify people who use services of a cancellation of a care service's registration and any arrangements which are to be put in place to ensure that those who use its services and their carers receive an ongoing and similar service. It would be appropriate for this to be done in collaboration with the public body. A public body should also communicate the outcome of the procurement exercise to any existing service providers that have chosen not to tender.
10.15 A contract award notice must be published on PCS for regulated contracts and must be sent to the OJEU for contracts or framework agreements greater than, or equal to, €750,000 no later than 30 days after the contract award or conclusion of the framework agreement. Where notices have been grouped it will be 30 days from the end of each quarter.
10.16 Full details of the evaluation process and contract award procedures can be found in the Procurement Journey.
10.17 It is important that this stage of the procurement process is managed successfully to ensure minimum disruption to people who use services and their carers. This will require close co-operation between different teams within a public body and between it and service providers.
10.18 This is particularly important where the outcome of the procurement exercise involves the transfer of an existing service to a new service provider. This is because there is some potential for the transfer process to be demanding and consume significant amounts of staff time. A public body should facilitate the transfer of accurate, up to date information to the new service provider and ensure that the handover arrangements are appropriate and fully implemented.
10.19 Service providers will need to satisfy the Care Inspectorate that it can adhere to the Public Services Reform (Scotland) Act 2010 and Regulations and also meet the relevant National Care Standards. The Care Inspectorate can take up to approximately six months to register a new care service. This depends on a range of issues, including provision of a competent application and the complexity of the service being provided.
10.20 Where an existing service provider seeks to deliver a new service under the existing registered care services, this should be discussed with the Care Inspectorate. It may be possible to vary the registration to include the new contract. However, consideration would need to be given to: the current conditions of registration; the size of the service; management and staff support arrangements; geography; client group and needs of those people who use services; transferability of staff across the service; staff skills and training; and the aims and objectives of the service.
10.21 If a service provider applies to cancel its registration, it is legally required to state whether notice has been given to those people who use the services and their carers about the changes to its service and how their needs will be met if the application to cancel is approved by the Care Inspectorate. A public body should provide the necessary support and information to a service provider to enable it to meet its legal obligations.
10.22 A public body which is outsourcing a service or bringing a service back in-house will have to meet its legal obligations under the TUPE Regulations. It should, in all such cases, seek legal advice on application of the TUPE Regulations. In other cases involving the transfer of an existing service, a public body should consider whether it needs to take any action, for example to facilitate the exchange of information between service providers, should the TUPE Regulations apply.
The opening chapters of this part of the guidance describe the types of things that a public body may consider at key stages of a procurement exercise. Specifically, those chapters describe some considerations for attaching a value to a contract, contract duration, reviewing contracts, handling of transitional arrangements and communication with people who use services and their carers and also contract award.
Chapter 8 describes the specific public procurement rules that apply to health or social (and including care and support services) contracts. It highlights the rules that apply and at what levels. In doing so, it describes the circumstances where a public body may award a non-EU regulated contract for a care and support service without seeking offers and in accordance with section 12 of the Act.
Chapter 8 also makes clear that a public body should seek advice from legal and/or procurement specialists about the application of the procurement rules, as this will vary depending on the type and value of a contract.
Although not the main subject of this guidance, chapter 8 also briefly touches on the rules that apply to some other services (i.e. not principally health or social, or care and support, in focus) but that are subject to the 'light-touch' regime.