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
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 fundamental principles deriving from the TFEU; European Procurement Directives ('the Directives') as implemented in national legislation; other national legislation; and Court of Justice of the European Union ('CJEU') and national 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.
TFEU fundamental principles
2.7 The TFEU fundamental principles apply to all procurement activities of cross-border interest undertaken by a public body, i.e. of interest to bidders from elsewhere in the European Union.
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 above €750,000. See chapter 8 for more information about the national Regulations that apply to care and support services at different values.
Key policies also linked to the procurement for 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 lists 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.
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.
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 - Equality.
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 the statutory guidance on the procurement for health or social care services which public bodies should also have regard to. Other key statutory guidance is described briefly in the following paragraphs.
2.23 The Scottish Government has published statutory guidance on Addressing Fair Work Practices, including the Living Wage, in 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 for 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 at chapter 4 of this guidance.
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 TFEU fundamental principles (transparency, equal treatment and non-discrimination, proportionality and mutual recognition) that apply to public procurements, and
- 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. 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.