18 February 2010 | Philippa Hart
Procuring services and consulting with the third sector can go hand in hand as long as we observe the principles of equality and fairness, explains Philippa Hart
Can public sector buyers comply with public procurement law and with “the Compact”? The latter being the agreement between government and the voluntary sector that sets out guidelines for how the two should work together.
Some commissioners may doubt it, but the answer is “yes”. Procurement law is often not as prescriptive as is sometimes assumed. Although the underlying principles of transparency, proportionality, equal treatment and non-discrimination must be observed, this does not always require a full EU regulated procedure starting with an OJEU notice. For a full OJEU process to be required, the services must be of a type defined in the applicable regulations as “Part A” services and the total contract value must be above a defined threshold. For service contracts this is £156,442.
Part B services, which include education, health and social services and all not specifically within the Part A list, are therefore not subject to much of the prescriptive detail of the procurement regime. This means there is significant flexibility, subject to compliance with the general principles requiring objectivity and fairness, as to the exact form of particular tenders – allowing corresponding flexibility to comply with the Compact generally.
The Compact encourages consultation with third sector organisations in relation to services – which procurement law does not prevent. Provided that purchasers comply with purchasing rules – particularly the key principle of “equal treatment” of potential suppliers – they may consult such bodies at points in the process. This could include inviting local third sector bodies to contribute views at the service planning stages or providing replies to queries about services for which they may tender. Observing “equal treatment” means giving all potential providers the same opportunity to contract and exactly the same information within a tender exercise. All questions and answers are supplied to all tenderers, guarding against advantage being derived from pre-tender consultations.
This principle of fair treatment is central to both public procurement law and the Compact. When properly applied a process can be established to judge the most economically advantageous tender by due reference to the relevant factors of quality and price in the context of a properly balanced contractual relationship. Added social and environmental benefits may fairly be taken into account in selection criteria - provided that they are disclosed to tenderers.
Other areas of concern are can they manage pre-qualification stages in a manner consistent with both determinants? Again, yes. Questions must be relevant and proportionate as to the contract value and disclose fair procedure, including assessment criteria and weighting.
Purchasers may be concerned about a possible conflict between required procedure and best practice fair treatment under the Compact. However, if commissioning is undertaken with understanding and respect for the principles and purpose of procurement law, the Compact principles emerge as closely complementary.
Philippa Hart is a solicitor at Bates Wells & Braithwaite (www.bwbllp.com)
