PART 4 B CONTRACT STANDING ORDERS
General
Introduction
Procurement decisions are among the most important decisions an officer will make because the money involved is public money and the Council is concerned to ensure that high quality goods, works and services are provided. Efficient use of resources in order to achieve best value is therefore an imperative. The Council's reputation is equally important and should be safeguarded from any imputation of dishonesty or corruption.
All staff are expected to comply with the Council's agreed procedures, and this includes Contract Standing Orders.
Failure to comply with Contract Standing Orders when letting contracts is a serious matter, and employees should report any actual or suspected breach of Contract Standing Orders to an appropriate senior manager and the Head of Audit.
Section
A applies to all of the Council’s contracts which are not
governed by governed by Section B: Social Care & Public Health
Services and other Light Touch Regime Services.
Contract Standing Order 1: Interpretation
1.1 In these Contract Standing Orders, the following terms have the following meanings:
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“Approved List” |
a list of suitable Contractors drawn up for corporate use under CSO 6 |
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“Budget Holder” |
a Council Employee who is accountable for a defined budget, and is responsible for committing expenditure against that budget in accordance with the Council’s Financial Standing Orders and Regulations |
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“Contract” |
Includes any agreement: (i) for the supply of goods, services, or the execution of works to or for the Council including the use of consultants, or (ii) where no payment is made by the Council but which is of financial value to the Council (for example a concession agreement), or (iii) any Framework Agreement.
but excludes: (a) the use of external solicitors and counsel instructed by the Corporate Director – Corporate Services (b) a contract for the purchase or sale of land (c) Grants (d) Individual employment contracts |
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“Contract Consultant” |
any person not being an employee of the Council who is acting for the Council in relation to a Contract or proposed Contract |
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“Contract Officer” |
a Council Employee authorised to deal with Contracts in accordance with CSO 3.1 |
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“Contractor” |
the party or potential party to a Contract |
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“Contract Finder” |
a centralised, Central Government run, online contract notice portal |
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“Contracts Register” |
the Council’s electronic register of Contracts |
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“Council” |
Brighton & Hove City Council |
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
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“Council Employee” |
any person employed on a permanent, temporary or agency arrangement by the Council |
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“CSO” / “CSOs” |
Contract Standing Order / Contract Standing Orders |
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“DPS” |
an electronic system used to purchase commonly used goods, works or services within a limited duration |
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“Corporate Director” |
Includes all Chief Officers including the Chief Executive, all Corporate Directors, the Monitoring Officer and the S151 Officer |
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“Framework Agreement” |
An arrangement made in accordance with the UK Regulations between the council (or another Contracting Authority) and a provider or providers of goods, works or services specifying the terms under which contracts can be “called off” or entered into over the period during which it is in force |
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“FTS” |
Find a Tender: the UK e-notification service where notices for new procurements are required to be published pursuant to the UK Regulations |
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“Grants” |
A grant is an arrangement where money is given for the benefit of all or for a section of the local community for a stated purpose other than for the procurement of services (whether the services are to be given to the Council or to third parties) |
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“Light Touch Regime” |
A specific set of rules for certain service contracts. Those service contracts include certain social, health, education and cultural services. The list of services to which the Light Touch Regime applies is set out in Schedule 3 of the Public Contracts Regulations 2015 (Annex A). |
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
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“Most Economically Advantageous Tender” |
A tender which has been selected by using weighted price and/or quality criteria. See CSO 9 |
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“Procurement Guidance” |
Corporate Procurement’s Codes of Practice (including the Procurement Toolkit), model contracts [and other guidance] that supplement these CSOs |
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“Head of Procurement” |
The person appointed by the Council as the Head of Procurement or any Member of the Corporate Procurement Team authorised by them to act on their behalf |
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“Procurement Thresholds” |
As of 1 January 2022, the thresholds inclusive of VAT are as follows: · Works: £5,336, 937 · Services: £213,477 · Light Touch Regime: £663,540 · Concession Contracts: £5,336,937 |
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“Senior Officer” |
All Heads of Service and any other officer who is a member of the Corporate Management Team. |
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“SME” |
Small and medium-sized enterprises |
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“UK Regulations” |
The Public Contracts Regulations 2015 (SI 102/2015) and/or the Concession Contracts Regulations (SI 2016/273), as amended, extended, re-enacted or consolidated from time to time |
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“works” “supplies” & “services” |
as defined in the UK Regulations (“supplies” are also referred to as “goods” in these CSOs) |
1.2 The Chief Executive, after consultation with the Monitoring Officer and the Chief Finance Officer, may change the non-statutory thresholds in CSOs annually (or as appropriate) to take account of changes in the retail price index and other factors so that the effectiveness and impact of the thresholds is maintained.
Contract Standing Order 2: Compliance with Contract Standing Orders and Legislation
2.1 The Monitoring Officer in consultation with the Head of Procurement shall compile and maintain CSOs and advise on their implementation and interpretation.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
2.2 Every Contract made by the Council or on its behalf shall comply with all relevant legislation, CSOs, and the Council’s Financial Regulations. UK legislation will always override the provisions of these CSOs.
2.3 Contractors, Contractors’ employees, subcontractors and agents utilised by the Council shall be required to, at all times, comply with the requirements of the Health & Safety at Work etc Act 1974, all secondary legislation made under that Act and all other Acts, Regulations, Orders or Rules relating to Health & Safety. All contracts shall reflect these requirements and reference to the Council’s Health & Safety Code of Practice should be made in this regard.
2.4 The Corporate Procurement Strategy and Procurement Guidance held and disseminated by the Head of Procurement, shall supplement these CSOs, but these CSOs will always take precedence over the provisions of such Procurement Guidance.
2.5
It
shall be a condition of any Contract between the Council and anyone
who is not a Council
Employee but who is
authorised to carry out any of the Council’s contracts
functions, that they comply with these CSOs, and the Financial
Regulations of the Council, as if they were Council Employees.
Contract Standing Order 3: Scheme of Delegation/Authorisation
3.1 Each Corporate Director has unrestricted delegated power to agree to the Council entering into Contracts or joining existing Framework Agreements up to the sum of £1,000,000. Above this sum and before inviting expressions of interest from potential bidders, Council Employees must seek approval from Cabinet.
3.2 Where a Corporate Director is unavailable or otherwise unable to act, their functions under these CSOs may be discharged by the relevant Senior Officer.
3.3 All Budget Holders (in relation to expenditure within their allocated budgets), Senior Officers, and Contract Officers authorised by the relevant Corporate Director or Senior Officer may agree to the Council entering into Contracts of up to £250,000 in value. Such authorisation may be expressed or implied from the duties attached to the Officer’s post.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
Contract Standing Order 4: Declarations of Interest and Prevention of Corruption
4.1 Members of staff must avoid any conflict between their own interests and the interests of the Council. At the beginning of any Contract process the following persons shall declare any interest, as defined in the Code of Conduct for Employees set out in the Council’s constitution, which may affect the Contract process:
4.1.1 Council Employees involved in the procurement and management of a Contract
4.1.2 Contractors
4.1.3 Contract Consultants
4.1.4 any other person involved in the Contract process
4.2 Corporate Directors and Senior Officers shall ensure that all Council Employees within the categories set out in CSO 4.1 and all Contract Consultants and Contractors appointed by them make written declarations of interest on their appointment and as required on any change in circumstances. Interests of Council Employees will be reviewed annually, either at the end or beginning of the financial year. The relevant Corporate Director or Senior Officer shall either certify interests as acceptable or take any necessary action in respect of potential conflicts of interest.
4.3 Corporate Directors and/or Senior Officers shall keep completed Council Employee declarations on the register of staff declarations indicating the names and grades of those declaring an interest and the nature of their interest.
4.4 Corporate Directors and/or Senior Officers shall keep completed Contract Consultants’ and Contractors’ declarations of interest and relevant Council Employees’ declarations affecting the Contract on the contract file.
4.5 A Council Employee within the categories set out in CSO 4.1 has an interest in a Contract if they have or potentially have a pecuniary interest or has links (for example, a family member or close friend works for the organisation), with an organisation or Contractor tendering or quoting for a Contract with the Council or already has a Contract with the Council. If it is not the subject of an existing declaration, they must immediately give written notice of their interest to the relevant Corporate Director or Senior Officer and in any event must take no part in the procurement process.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
4.6 Council Employee must not invite or accept any gift or reward in respect of the award or performance of any Contract. It will be for the Council Employee to prove that anything received was not received corruptly. High standards of conduct are obligatory and corrupt behaviour will lead to dismissal.
4.7 The Contract process shall ensure that the Council will operate strict separation of duties by ensuring that two authorised Council Employees are involved in the ordering, receiving and payment process.
4.8 The following clause, (or an equivalent clause in standard forms of contract or other wording as approved by the Monitoring Officer) must be appear in every written Council Contract:
“The Council may terminate this Contract and recover all its loss if the Contractor, its employees or anyone acting on the Contractor’s behalf do any of the following things:
(a) offer, give or agree to give to anyone any inducement or reward in respect of this or any other Council Contract (even if the Contractor does not know what has been done); or
(b) commit an offence under the Bribery Act 2010; or
(c) commit any fraud in connection with this or any other Council Contract whether alone or in conjunction with Council Members or Employees.
Any clause limiting the Contractor’s liability shall not apply to this provision.”
4.9 A register of interests under CSO 4 may be a separate register or it may form part of a general register of declarations of interest as the Corporate Director or Senior Officer considers appropriate.
Contract Standing Order 5: Public Notices
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
5.1 All Contracts whose value exceeds the relevant Procurement Threshold and which - if below the threshold - may be of interest to local suppliers shall be advertised in the FTS and on Contracts Finder. Contract Officers are required to keep a record of their consideration of and decision in respect of the potential for cross border interest in a Council Contract.
Approved Lists and Framework Agreements
Contract Standing Order 6: Approved Lists
6.1 The Head of Procurement may compile Approved Lists for Contractors for the supply of goods and other services for Contracts below the relevant Procurement Threshold as appropriate.
6.2 Where compiled pursuant to CSO 6.1, Approved Lists–
6.2.1 shall, in the case of internally managed Approved Lists, be established by advertised competition (subject to CSO 6.3).
6.2.2 shall contain the names and addresses of all Contractors who meet the Approved List criteria.
6.2.3 shall indicate the nature and value of Contracts for which the Contractors listed may be used. The value may not exceed the relevant Procurement Threshold.
6.2.4 where maintained internally by the Council shall be reviewed in full at least every three years in addition to a review of the use of external providers from such Approved Lists.
6.3 Construction Line and standing lists of providers maintained by other public sector bodies compiled following responses to a public advertisement shall be deemed to be Approved Lists for the purpose of these CSOs.
6.4 In addition Corporate Directors with the assistance of the Head of Procurement may set up Framework Agreements in line with Procurement Regulations with one or more suppliers of particular types of goods or services.
6.5 The criteria for admission to and suspension and exclusion from internally managed Approved Lists shall be specified in writing by: -
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
(a) the Head of Procurement, for goods and services and non-construction works
(b) the Head of Property and Design, for works and works related services
6.6 Any Contractor may, by giving written notice to the Council, withdraw from any internally managed Approved List.
6.7 Where there is no Approved List or Framework Agreement, Corporate Directors and Senior Officers shall use an approved quotation or tender procedure in accordance with Procurement Guidance.
Contract Standing Order 7: Framework Agreements
7.1 Prior to accessing any Framework Agreement the relevant Corporate Director or Senior Officer must firstly determine that the Framework Agreement is available for legitimate use by the Council in accordance with Regulation 33 of the UK Regulations.
7.2 Where two or more Framework Agreements exist which are capable of fulfilling the Council’s requirements, the relevant Corporate Director or Senior Officer shall select the one they consider (a) to represent the best value for money and (b) best meets any other relevant criteria; and shall keep a written record of the reasons justifying the selection.
7.3 Prior to the procurement of a new, or joining a pre-existing, Framework Agreement, the Head of Procurement must be satisfied that such an approach represents the most economically advantageous solution for a service, work, or supply provision.
7.4 When setting up a Framework Agreement for the Council, the relevant Corporate Director or Senior Manager shall use the most appropriate procurement procedure permitted by the Procurement Regulations.
7.5 When procuring goods or services from an existing Framework Agreement, the relevant Corporate Director or Senior Manager may –
where there is only one supplier capable of fulfilling the requirement, select that supplier;
where there is more than one supplier capable of fulfilling the requirement listed on the Framework Agreement and the terms and conditions and requirements of the Framework Agreement are sufficiently specific without change as to allow award to any one of the suppliers, select one of the suppliers without the need for further competition subject to demonstrating value for money.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
7.6 When procuring goods or services from an existing Framework Agreement and there is a need to refine or supplement any of the requirements referred to in 7.5 (ii) above, a mini-competition inviting all those persons on the Framework who are capable of providing the goods and services must be held, such mini-competition to be held in accordance with the Framework Agreement provisions and CSOs 9, 10, 11 or 12 as appropriate.
7.7 All tenders from potential suppliers on Framework Agreements must be submitted via the e-tendering system unless an exemption from e-tendering has been approved in advance by the Head of Procurement as for example in the case of incompatibility with the particular Framework Agreement requirements.
7.8 Before establishing a Framework Agreement, the relevant Corporate Director or Senior Manager shall be satisfied that:
(i) the term of the arrangement shall be for a period of no longer than four years;
(ii) the terms and conditions of the Framework Agreement do not compromise the Councils’ contractual requirements;
(iii) full, open, and proper competition in respect of the creation of the framework has taken place.
(iv) consideration is given to making the Framework Agreement available to other public bodies where appropriate.
Contract Standing Order 8: Contract Value and Aggregation
8.1 Council Employees shall estimate and record the total value of a proposed Contract net of VAT.
8.2 Contracts must not be artificially separated so as to circumvent the application of any CSO or of the Procurement Regulations.
8.3 The total value of a Contract for works, services or supply of goods is estimated to be the same as the total consideration to be payable over the term of the Contract by the Council to the Contractor. Where the Contract period is indefinite or uncertain then the estimated total value is calculated by assuming a four-year term. If the Council has an option to extend the Contract, the value is the value of the Contract including the period of the extension.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
Requirement to Obtain Tenders
Contract Standing Order 9: Tendering Procedures
9.1 At the outset of each procurement the Contract Officer must:
(i) assess the business need;
(ii) ensure the procurement complies with corporate policies and priorities;
(iii) when appropriate undertake a premarket testing exercise;
(iv) ensure the necessary authority is in place to undertake the procurement; and
(v) ensure that adequate provision is made within the Council’s capital or revenue estimates and that proper technical and financial appraisals have been carried out in accordance with the Council’s Financial Procedure Rules.
9.2 Where procurement of goods, services or works is required and the estimated total value of the Contract is in excess of the relevant Procurement Threshold, public procurement procedures shall be followed as set out in the UK Regulations and these shall prevail over the tendering procedures set out in these CSOs.
9.3 For most goods, services and works Contracts the restricted, open, or competitive dialogue procedure will be appropriate. Enquiries should be made of the Head of Procurement or Legal Services if it is proposed to use an innovation partnership or a competitive procedure with dialogue or negotiation.
9.4 For Private Finance Initiative, Public Private Partnership and similar procurement arrangements introduced by the Government, where the total Contract value is in excess of the relevant Procurement Threshold, the restricted or competitive dialogue procedure will be used.
9.5 The Council may procure goods, services or works to any value in collaboration with other local authorities or other public or voluntary sector bodies. Where the Council is the lead buyer within the consortium, these CSOs shall apply. Where the Council is not the lead buyer, procurement procedures shall follow the CSOs of the lead buyer.
9.6 When determining a suitable procurement route, consideration will be given to all tenders with respect to:-
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
(i) separating the Contract into Lots in order to promote SME engagement;
(ii) sustainability issues in accordance with the Council’s Sustainability Policy and Sustainable Procurement Policy;
(iii) in the case of service contracts, the provisions of the Public Services (Social Value) Act 2012.
9.7 The procedure must be both appropriate and proportionate to the value of the contract. It must ensure that the Council achieves best value which is to be assessed by an evaluation of both the price and quality of bids received so as to determine the Most Economically Advantageous Tender over the life of the contract. Price shall be the sole criterion only where the Corporate Director, Senior Officer or the Council Employee preparing the Contract for him/her considers this to be appropriate.
9.8 Evaluation criteria and weightings for each procurement shall be determined in advance and included in the invitation to tender. Determination of criteria at all stages shall be undertaken in accordance with Procurement Guidance.
Contract Standing Order 10: Contracts Not Exceeding £25,000
10.1 Where the appropriate Corporate Director or Senior Officer estimates the total Contract value for goods, services or works is unlikely to exceed £25,000 (in the case of Consultants is unlikely to exceed £10,000) and there is a suitable Framework Agreement available, that Framework Agreement shall be used. Where no Framework Agreement is available competitive quotations in writing shall be requested or a commercial negotiation with one preferred Contractor may take place. In the latter case the Corporate Director or Senior Officer shall certify that Procurement Guidance has been followed and that the Council shall receive value for money.
10.2 Contracts with an estimated total value not exceeding £25,000 shall be evidenced in writing in simple cases by way of letter or the issue of an order. In the case of consultants (whatever the value) and in all other cases formal written Contracts shall be completed.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
10.3 Although the competitive process for ensuring Contracts not exceeding a total value of £25,000 is less formal than for Contracts of greater amounts, Officers should at all times bear in mind the need to seek value for money and be able to demonstrate that they have obtained it.
Contract Standing Order 11: Contracts Exceeding £25,000 and Not Exceeding £75,000
11.1 Where the Contract Officer estimates the total Contract value is likely to be greater than £25,000 (in the case of Consultants greater than £10,000) but not exceeding £75,000 and an Approved List or Framework Agreement is available then at least four competitive tenders in writing shall be sought from Contractors on the relevant Approved List or Framework Agreement.
11.2 In the absence of an Approved List or Framework Agreement being available an approved tender procedure shall be used in accordance with Procurement Guidance.
11.3 In either case, if less than four suitably qualified tenders are available, the Contract Officer must consult with the Head of Procurement.
11.4 Where criteria additional to price are to be used in evaluation, these must be set out in the invitation to tender. At least two bona fide tenders must be received and the Most Economically Advantageous Tender accepted.
11.5 If only one compliant tender is received, the Contract Officer must consult with the Head of Procurement and provide evidence to show that the Council can obtain value for money.
11.6 Contracts with an estimated total value greater than £25,000 and not exceeding £75,000 shall be evidenced in writing in simple cases by the receipt of a written quotation and the delivery of an official order form. In all other cases, including consultancy arrangements, a formal written Contract must be entered into.
Contract Standing Order 12: Contracts Exceeding £75,000
12.1 Where the Contract Officer estimates that the total value of a Contract is likely to exceed £75,000 and either a Framework Agreement or Approved List is available, then at least five tenders will be sought from Contractors on the relevant Framework Agreement or Approved List.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
12.2 In the absence of a Framework Agreement or Approved List being available an approved tender procedure shall be used in accordance with Procurement Guidance and, where applicable, in accordance with the Procurement Regulations and at least five tenders must be sought.
12.3 If less than five suitably qualified tenders are available, the Contract Officer must consult with the Head of Procurement.
12.4 At least two compliant tenders must be received and the Most Economically Advantageous Tender must be accepted. Notwithstanding this, if only one compliant tender is received, the Contract Officer must consult with the Head of Procurement and provide evidence to show that the Council can obtain value for money.
12.5 Where the estimated total value of the Contract is such that the Council is required by law to comply with the Procurement Regulations, the Procurement Regulations shall be complied with and the tender procedures set out in these CSOs shall be deemed to be satisfied by such compliance.
12.6 Decisions relating to the Contract process for Contracts exceeding the relevant Procurement Threshold shall be made by the Corporate Director or Senior Officer in consultation with either:
(a) the Head of Procurement, for goods and services Contracts; or
(b) the Head of Property and Design for works Contracts.
Contract Standing Order 14: Contract Formation and Threshold for Sealing
14.1 All Contracts should be formed using the Council’s standard terms and conditions applicable to the type of contract in question, as issued from time to time by Legal Services.
14.2 Electronic signatures may be used provided that the sufficiency of security arrangements has been approved by the relevant Corporate Director.
14.3 Any Contract with an estimated value of £100,000 or less which does not use the Council’s standard terms and conditions (as referred to in paragraph 14.1) must be referred to the Head of Procurement for advice prior to the issue of the tender or quotation documents.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
14.4 Any Contract with an estimated value of £100,000 or less which does not use the Council’s standard terms and conditions (as referred to in CSO 14.1) must be referred to Corporate Procurement for advice before executing the Contract.
14.5 Any Contract with an estimated value over £100,000 which does not use the Council’s standard terms and conditions (as referred to in CSO 14.1) must be forwarded to Legal Services prior to the issue of a tender, for advice as to whether the proposed Contract adequately protects the Council’s interests.
14.6 Without prejudice to paragraph CSO 14.1 the Corporate Director – Corporate Services may approve other terms and conditions to be used in respect of a particular Contract or type of Contracts when appropriate to protect the Council’s interests.
14.7 Subject to paragraph 14.8 below:
(i) Contracts with an estimated value over £1,000,000 shall be executed as a deed using the Common Seal of the Council;
(ii) Contracts with an estimated value of £1,000,000 or less may be executed as a simple contract and signed by an officer duly authorised for that purpose in accordance with CSO 3.1.
14.8 The Corporate Director – Corporate Services may, on a case by case basis or in relation to a particular class of contracts and taking all relevant circumstances into account, stipulate the method by which a particular contract or class of contracts is to be executed, irrespective of the overall estimated value of the Contract.
Tendering Process
Contract Standing Order 15: Delivery, Opening and Evaluation of Tenders
15.1 Tenders for Contracts must be submitted by entirely electronic means using the Council’s corporate e-tendering system.
15.2 Alternative methods of submission, including postal submissions, may be permitted in exceptional circumstances and only with the express written authorisation from the Head of Procurement.
15.3 Any form of electronic submission (including e-mail) that does not form part of the corporate e-tendering system shall not be permitted, and tenders submitted in such a way shall be treated as invalid.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
15.4 Where tenders are to be submitted electronically, paragraphs 15.4.1 and 15.4.2 shall apply:
15.4.1 All tenders for any Contract shall be returned via the e-tendering system.
15.4.2 A tender box shall be used and all tenders shall be opened at the same time by a minimum of two authorised procurement officers. Any tender received after the specified time shall not be considered for evaluation.
15.5 Where tenders are to be submitted by post, paragraphs 15.5.1 to 15.5.3 shall apply:
15.5.1 All tenders for any Contract estimated to be under a total of £75,000 in value shall be returned to the Corporate Director or Senior Officer inviting the tender (or their nominee), or as otherwise indicated in CSOs, in envelopes which shall bear no mark to identify the sender. The Officer shall be responsible for ensuring that a record of all such tenders received is kept.
15.5.2 For Contracts with an estimated total value exceeding £75,000 all tenders shall be returned as appropriate to the Head of Property and Design or the Head of Procurement in envelopes, which shall bear no mark to identify the sender and shall be opened by him/her at the same time in the presence of a Council Employee designated by the relevant Corporate Director or Senior Officer. The Head of Property and Design and the Head of Procurement shall each maintain a record of all such tenders received by him/her.
15.5.3 All tenders shall be opened at the same time, as soon as is reasonably practicable after the closing date, normally on the closing date. On receipt, all tender envelopes shall be endorsed with the time and date of receipt and kept secure until the time specified for tender opening. Any tender received after the specified time shall not be considered for evaluation and shall be returned promptly to the tenderer. A late tender may be opened to ascertain the name of the tenderer but no details of the tender shall be disclosed.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
Contract Standing Order 16: Contract Award
16.1 No Contract may be awarded unless the expenditure involved has been included in approved estimates or on capital or revenue accounts, or has been otherwise approved by, or on behalf, of the Council. The Corporate Director or Senior Officer shall ensure that evidence of authority to spend, and the budget code to be used, is recorded on the Contract file.
16.2 Each Contract shall be awarded in accordance with evaluation criteria that have been adopted for the Contract.
16.3 Contract Officers shall arrange for formal management reviews of high value and/or high risk contracts to be put in place by Corporate Directors and shall have regard to Procurement Guidance issued on the management of Contracts.
Contract Standing Order 17: Contracts Records
17.1 All contract awards in excess of £30,000 shall be published, via
the Council’s e-tendering platform, on Contracts Finder. For
procurements above the Procurement Thresholds, the contract
award details must be published on Find a Tender Service, as well
as Contracts Finder.
17.2 Each Contract Officer, responsible for the procurement process,
shall be responsible for publishing information regarding the contract, onto Contracts Finder and Find a Tender Service, through the Council’s e-tendering platform, within 30 days of award. Where a member of the Council’s Procurement team is responsible for the tendering process then they will undertake that responsibility instead.
17.3 The Officer responsible for procuring a Contract, Framework Agreement or DPS whose value is estimated to exceed the applicable Procurement Threshold shall maintain a record of each procurement and shall draw up a written report complying with the provisions of Regulation 84(1-5) of the UK Regulations.
17.4 All procurement procedures shall be documented regardless of value and the documentation retained for 3 years from the date of award of contract.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
Contract Standing Order 18: Termination
18.1 Contracts regulated by the UK Regulations shall incorporate the right to terminate the Contract where:
(i) the Contract has been subject to a substantial modification which would have required a new procurement procedure under Regulation 72 of the UK Regulations;
(ii) the Contractor has, at the time of the Contract award, been in one of the situations referred to in Regulation 57 of the UK Regulations (mandatory exclusions) and should have been excluded from the procurement procedure; or
(iii) where the Contractor (or their employees) is in breach of the provisions of the Bribery Act 2010.
Operation of Contract
Contract Standing Order 19: Contract Modification
19.1 Funding must be identified before any modification of an existing Contract which will require the Council to provide additional funding is approved in accordance with the Council’s Financial Regulations. See Financial Regulation D.2.2.17.
19.2 Subject to CSO 19.1 an existing contract may be varied in accordance with specific provisions provided for in the Contract.
19.3 A modification not provided for in an existing Contract may be implemented subject to CSO 19.1 and the approval of the Corporate Director or Senior Officer provided that the modification is permitted in accordance with the provisions of UK Regulations.
Contract Standing Order 20: Waivers of Contract Standing Orders
20.2 Subject to CSO 20.6, in relation to Contracts estimated to not exceed a total value of £75,000, a Corporate Director may waive the requirements of any CSO, as long as:
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
(a) the Head of Procurement is notified as soon as possible.
(b) the Corporate Director certifies in writing to the Head of Procurement the CSO being waived and the reasons for doing so.
20.3 Subject to CSO 20.6, in relation to Contracts estimated to exceed a total value of £75,000, an Corporate Director may, after consultation with the relevant Cabinet Member and the Head of Procurement, waive the requirements of CSOs as long as:
(a) the waiver report (the Report) is compiled after consulting with the Head of Procurement;
(b) the Report is issued setting out the CSO being waived and the reasons for the waiver;
(c) the Report includes legal comments (if the contract is above the relevant Procurement Threshold, as defined above) and financial comments and highlights, as necessary, any future commitment (whether of a financial character or not) which the Contract may entail; and
(d) the Report justifies the method of Contractor selection so that value for money and compliance with the law can be demonstrated.
20.4 If an emergency has been declared under the Council’s emergency planning or business continuity procedures and it is not possible or practicable for a Council Employeewho would normally exercise the powers of waiver under CSO 20.2 and CSO 20.3 to do so, the powers may be exercised by:
(i) the Council Employee who is designated to be in charge under those procedures or
any Council Employee appointed by him / her to act on their behalf.
Further, if it is not possible or practicable for that Council Employee, before exercising the powers under CSO 20.3, to consult the relevant Cabinet Member or the Head of Procurement or to issue the necessary Report, the Council Employee may exercise the powers without doing so but shall take such steps as appear appropriate at the time to keep the relevant Cabinet Member and the Head of Procurement informed and shall issue the Report as soon as is reasonably practicable.
Section A: Contract Standing Orders which apply to all contracts which are NOT governed by Section B: Social Care & Public Health Services and other Light Touch Regime Services
20.5 A report for information giving a digest of all waivers under CSO 20.2, 20.3 and 20.4 shall be made by the Head of Procurement covering the previous financial year annually to Cabinet.
20.6 For the avoidance of doubt, no waivers may be made so as to alter the full application of CSO 4 (Declarations of Interest and Prevention of Corruption), CSO 16 (Contracts Award), CSO 17 (Contract Registers and Records), CSO 19.3 (Contract Modification), or if such waiver would result in a breach of domestic law, provided that in exceptional circumstances where the Corporate Director is satisfied that a waiver of CSO 19.3 is necessary to ensure the continuity of services, works and/or supplies which would otherwise cease, a waiver of CSO 19.3 may be made so as to permit the continuation of the services, works and/or supplies until a new contract has been let.
20.7 A register of all waivers will be maintained by Corporate Procurement and kept available for inspection by the public with reasonable notice during working hours.
Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
CONTRACT STANDING ORDERS FOR SOCIAL CARE AND PUBLIC HEALTH SERVICES AND OTHER LIGHT TOUCH REGIME SERVICES
Introduction
The Council recognises that the procurement of the health and social care services involves a range of unique considerations, which are different and/or additional to those that apply to the procurement of other goods, services and works.
Health and social care services are treated differently for the purpose of the UK Regulations. The Council is also mindful of the duties in respect of the commissioning of adult social care services brought into force by the Care Act 2014 and of the duties in respect of the commissioning of children’s social services under the statutory scheme for children, including in particular the Children Act 1989, the Children Act 2004, the Childcare Act 2006, the Children and Families Act 2014 and associated regulations and statutory guidance. The Council additionally acknowledges its duties in respect of public health including those under the National Health Service Act 2006.
In order to reflect these principles, the Council has therefore adopted these Contract Standing Orders setting out the underlying principles and administrative procedures that will be followed in relation to the procurement and award of contracts for such services.
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
Contract Standing Order 1: Interpretation
1.1 In these Contract Standing Orders, the following terms have the following meanings:
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“Authorised Officer” |
the relevant Corporate Director, a Senior Officer within the relevant Corporate Director’s Directorate or the officer authorised by the relevant Corporate Director to deal with the matter on behalf of their Directorate; |
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“Budget Holder” |
a Council Employee who is accountable for a defined budget and is responsible for committing expenditure against that budget in accordance with the Council’s Constitution including the Council’s Financial Standing Orders. |
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“Concession Contract” |
a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or utilities entrust the provision and the management of services or works to one or more economic operators, the consideration of which consists either solely in the right to exploit the services or works that are the subject of the contract or in that right together with payment which also meets the requirements of Regulation 3(4) of The Concession Contracts Regulations 2016; |
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Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
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1.2 In the event that there is any conflict or inconsistency between the provisions of these Contract Standing Orders and the Council’s other Contract Standing Orders, in relation to the procurement of the Services, these Contract Standing Orders will take precedence.
1.3 The Chief Executive, after consultation with the Monitoring Officer and the Chief Finance Officer, may change the non-statutory thresholds in Contract Standing Orders annually (or as appropriate) to take account of changes in the retail price index and other factors so that the effectiveness and impact of the thresholds is maintained.
Contract Standing Order 2: Compliance with Contract Standing Orders and Legislation
2.1 The Monitoring Officer in consultation with the Head of Procurement shall compile and maintain these Contract Standing Orders and advise on their implementation and interpretation.
2.2 Every Contract governed by these Contract Standing Orders shall comply with these Contract Standing Orders, all applicable Laws and the Council’s Financial Regulations. The Law including the UK Regulations will always override the provisions of these Contract Standing Orders.
2.3 Contractors, Contractors’ employees, subcontractors and agents utilised by the Council shall be required to, at all times, to comply with the requirements of the Health & Safety at Work etc Act 1974, all secondary legislation made under that Act and all other Acts, Regulations, Orders or Rules relating to health and safety. All Contracts shall reflect these requirements and reference to the Council’s Health & Safety Code of Practice should be made in this regard.
The Monitoring Officer and Head of Procurement may issue guidance which shall supplement these Contract Standing Orders, but these Contract Standing Orders will always take precedence over the provisions of such guidance.
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
2.4 It shall be a condition of any Contract between the Council and anyone who is not a Council Employee but who is authorised to carry out any of the Council’s contracts functions, that they comply with these Contract Standing Orders, and the Financial Regulations of the Council, as if they were Council Employees.
Contract Standing Order 3: Scheme of Delegation/Authorisation
3.1 The relevant Corporate Director has unrestricted delegated power to agree to the Council entering into Contracts or joining Framework Agreements or Dynamic Purchasing Systems which require the Council to fund up to £1,000,000. Above this sum Council Employees must seek approval from Cabinet.
3.2 Where the relevant Corporate Director is unavailable or otherwise unable to act, their functions under these Contract Standing Orders may be discharged by the relevant Senior Officer.
3.3 All Budget Holders (in relation to expenditure within their allocated budgets), Senior Officers and other officers authorised by the relevant Corporate Director or a Senior Officer may agree to the Council entering into Contracts which require the Council to fund up to £250,000. Such authorisation may be expressed or implied from the duties attached to the officer’s post.
The relevant Corporate Director may agree to Prior Information Notices being issued prior to seeking Cabinet approval (if required) for any procurement.
Contract Standing Order 4: Declarations of Interest and Prevention of Corruption
4.1 Members of staff must avoid any conflict between their own interests and the interests of the Council. At the beginning of any Contract process the following persons shall declare any interest, as defined in the Code of Conduct for Employees set out in the Council’s Constitution, which may affect the Contract process:
i. Council Employees involved in the procurement and management of a Contract;
ii. Contractors;
iii. Contract Consultants; and
iv. any other person involved in the Contract process.
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
4.2 The relevant Corporate Director and Senior Officers shall ensure that all Council Employees within the categories set out in Contract Standing Order 4.1 and all Contract Consultants and Contractors appointed by them make written declarations of interest on their appointment and as required on any change in circumstances. Interests of Council Employees will be reviewed annually, either at the end or beginning of the financial year. The Corporate Director or relevant Senior Officer shall either certify interests as acceptable or take any necessary action in respect of potential conflicts of interest.
4.3 The relevant Corporate Director and/or Senior Officers shall keep completed Council Employee declarations on the register of staff declarations indicating the names and grades of those declaring an interest and the nature of their interest.
4.5 A Council Employee within the categories set out in Contract Standing Order 4.1 has an interest in a Contract if they have or potentially have a pecuniary interest or have links (for example, a family member or close friend works for the organisation), with an organisation or Contractor tendering or quoting for a Contract with the Council or already has a Contract with the Council. If it is not the subject of an existing declaration, they must immediately give written notice of their interest to the relevant Corporate Director or Senior Officer and in any event must take no part in the procurement process.
4.6 Council Employees must not invite or accept any gift or reward in respect of the award or performance of any Contract. It will be for the Council Employee to prove that anything received was not received corruptly. High standards of conduct are obligatory and corrupt behaviour will lead to dismissal.
4.7 The Contract process shall ensure that the Council will operate strict separation of duties by ensuring that two authorised Council Employees are involved in the ordering, receiving and payment process.
4.8 The following clause, (or an equivalent clause in standard forms of contract or other wording as approved by the Monitoring Officer) must be appear in every written Council Contract:
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
“The Council may terminate this Contract and recover all its loss if the Contractor, its employees or anyone acting on the Contractor’s behalf do any of the following things:
(a) offer, give or agree to give to anyone any inducement or reward in respect of this or any other Council Contract (even if the Contractor does not know what has been done); or
(b) commit an offence under the Bribery Act 2010; or
(c) commit any fraud in connection with this or any other Council Contract whether alone or in conjunction with Council Members or Employees.
Any clause limiting the Contractor’s liability shall not apply to this provision.”
4.9 A register of interests under Contract Standing Order 4 may be a separate register or it may form part of a general register of declarations of interest as the relevant Corporate Director or Senior Officer considers appropriate.
Contract Standing Order 5: Contract Value and Aggregation
5.1 Council Employees shall estimate and record the total value of a proposed Contract inclusive of VAT.
5.2 Contracts must not be artificially separated so as to circumvent the application of any Contract Standing Order or the UK Regulations.
5.3 The total value of a Contract shall be estimated to be the same as the total consideration to be payable over the term of the Contract by the Council to the Contractor inclusive of VAT. Where the Contract period is indefinite or uncertain then the estimated total value is calculated by assuming a four-year term. If the Council has an option to extend the Contract, the value is the value of the Contract including the period of the extension.
Contract Standing Order 6: General Principles
6.1 Contracts for the Services must be procured in accordance with the UK Regulations to the extent that those rules apply.
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
6.2 The Council acknowledges that, whilst the full requirements of the UK Regulations do not apply to Contracts for the Services, they are nevertheless subject to the principles of transparency and equal treatment.
6.3 In procuring Contracts for the Services, from the formulation of the specification for a Service and throughout the tender and award process, the Council and its officers will have particular regard to:
i. the quality, continuity, accessibility, affordability, availability and comprehensiveness of the Services being procured;
ii. the specific needs of different categories of service users including in particular disadvantaged and vulnerable groups;
iii. the involvement and empowerment of service users; and
iv. innovation in the type of and/or delivery of services.
6.4 The Council recognises that the Care Act 2014 introduces and consolidates a number of duties which will be relevant to its commissioning and procurement functions and decisions. Accordingly, in procuring Contracts for the Services where the Care Act 2014 is applicable, from the formulation of the specification for a Service and throughout the tender and award process, the Council and its officers will take account of the Council’s duties to:
i. promote the well-being of the individuals who will be in receipt of the Services;
ii. provide and arrange Services which will contribute towards the prevention or delay in the development of or reduction in the needs of adults and carers in the area;
iii. promote the integration of care and support with health services;
iv. provide a variety of different Providers of the Services in its geographical area;
v. facilitate a variety of high quality services from which an individual can choose to obtain the Services;
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
vi. properly shape and maintain the sustainability of the market for the Services; and
vii. make available to Providers information about demand for the Services, both current and forecast and other relevant data about the market.
6.6 The Council will comply with its duties in respect of public health under the National Health Services Act 2006 when procuring Contracts for the Services.
6.7 The Council will have regard to the Public Services (Social Value) Act 2012 when procuring Contracts for the Services.
Contract Standing Order 7: Tendering Processes
7.1 All tender processes will be proportionate to the value of the Contract and the nature of the Services.
7.2 Where the value of a Contract for the Services exceeds the Procurement Threshold, the Authorised Officer, following consultation with the Head of Procurement or Strategic Procurement Manager(s), will be responsible for deciding the process to be followed to ensure that the UK Regulations are complied with and the requisite details of the Contract are made known though the Notification Procedures.
7.3 Where the value of a Contract is below the Procurement Threshold, the Authorised Officer (who must in the case of Contracts over £25,000 must first consult with the Head of Procurement or Strategic Procurement Manager(s)) may determine that, save for any notice requirements set out in Contract Standing Order 7.2 above, a competitive procedure for the tender of the Contract is not required or only a limited competition is required. Such a decision may be appropriate for the reasons including (but not limited to) the following:
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
i. the Service is of such a specialised nature that no other suitable Provider exists; and/or
ii. the Provider(s) of the Service is(are) best placed to meet the needs of the service user(s) concerned; and/or
iii. an innovative, specialised, cost effective or unique Service is being offered by a particular Provider(s) and the Council wishes to improve the effectiveness of that Service; and/or
iv. a soft market testing activity conducted by Procurement indicates that the Provider is best placed to provide the Service; and/or
v. the nature of the Service is such that it will not or cannot be adequately specified in advance because of the nature of the social care needs of the service user(s) concerned; and/or
vi. an urgent service user placement needs to be made and cannot be made under an existing Framework Agreement or Dynamic Purchasing System which the Council is signed up to; and/or
vii. there are special circumstances such as ownership of land or property, geographic locations or particular skills or experience of Providers of the Services which limit the choice of Provider; and/or
viii. the application of a competitive tender process would adversely affect or result in the loss of a linked service, cause destabilisation, affect continuity of existing Services or lead to a lack of Service provision; and/or
ix. the application of a competitive tender process is not proportionate to the value of Contract or the nature of the Services; and/or
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
x. it has become urgent to provide the Services and the timescales for a competitive tender process cannot be reasonably complied with.
7.5 In the case of Out of City Contracts, where the value of the Contract is below the Procurement Threshold, the Authorised Officer may determine, without prior consultation with the Head of Procurement, that save for any notice requirements set out in Contract Standing Order 7.2, a competitive procedure for the tender of the Contract is not required. Such a determination may be made by the Authorised Officer for the reasons set out in (but not limited to) CSO 7.3 (i) to (x).
Contract Standing Order 8: Stakeholder participation and engagement
8.2 The Council will aim to engage Providers or their representatives in the commissioning and procurement cycle to enable planning and investment in the Services and improved design of the Services where proportionate.
Contract Standing Order 9: Evaluation and Award
i. social and environmental aspects of the submission;
ii. the quality, continuity, accessibility, affordability, availability and comprehensiveness of the Services being offered;
iii. any preferences expressed by individuals who will be in receipt of the Services or their representatives;
iv. the outcomes the Services are designed to achieve for individuals; and
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
v. the degree to which the Services are designed to prevent, delay or reduce the needs of individuals in receipt of the Services.
9.2 The Authorised Officer in consultation with the Council’s Procurement team will ensure that tenders received for the Services are evaluated in accordance with the evaluation criteria that have been adopted for the Contract and stated in the invitation to tender (“the Criteria”).
9.4 When deciding whether a tender submission offers best value for money, the Council will take into account the quality of the offer and any price/quality ratio. Within that the Council may choose the weighting of the different aspects as appropriate to ensure competent and quality delivery of the Services in balance with delivering against the Council’s other pressures.
Contract Standing Order 10: Framework Agreements and Dynamic Purchasing Systems
10.3 When procuring Services from an existing Framework Agreement or Dynamic Purchasing System, the relevant Corporate Director or Senior Officer must select Providers in accordance with the UK Regulations and the requirements and the terms and conditions of the Framework Agreement or Dynamic Purchasing System.
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
10.4 When setting up a Framework Agreement or Dynamic Purchasing System for the Council, the relevant Corporate Director or Senior Officer shall use the most appropriate procurement procedure permitted by the UK Regulations and shall have regard to the criteria set out Contract Standing Order 9.1 above.
Contract Standing Order 11: Contract Formation and Threshold for Sealing
11.1 Subject to Contract Standing Order 11.3 and 11.4, Contracts should be formed using the Council’s standard terms and conditions applicable to the type of contract in question, as issued from time to time by Legal Services.
11.2 Electronic signatures may be used provided that the sufficiency of security arrangements has been approved by the relevant Corporate Director.
11.3 Any Contract with an estimated value of £100,000 or less which does not use the Council’s standard terms and conditions must be referred to the Head of Procurement(s) for advice prior to the issue of the tender or quotation documents and the execution of the Contract.
11.4 Any Contract with an estimated value over £100,000 which does not use the Council’s standard terms and conditions must be forwarded to Legal Services prior to the issue of a tender and the execution of the Contract, for advice as to whether the proposed Contract adequately protects the Council’s interests.
11.5 Without prejudice to paragraph Contract Standing Order 11.1, Legal Services may approve other terms and conditions to be used in respect of a particular Contract or type of Contracts when appropriate to protect the Council’s interests.
11.6 Subject to Contract Standing Order 11.7 below:
i. Contracts with an estimated value over £1,000,000 shall be executed as a deed using the Common Seal of the Council;
ii. Contracts with an estimated value of £1,000,000 or less may be executed as a simple contract and signed by an officer duly authorised for that purpose in accordance with Contract Standing Order 3.
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
11.7 The Monitoring Officer may, on a case by case basis or in relation to a particular class of contracts and taking all relevant circumstances into account, stipulate the method by which a particular contract or class of contracts is to be executed, irrespective of the overall estimated value of the Contract.
Contract Standing Order 12: Contracts Records
12.1 All contract awards in excess of £30,000 shall be published, via the Council’s e-tendering platform, on Contracts Finder. For procurements above the Procurement Thresholds, the contract award details must be published on Find a Tender Service, as well as Contracts Finder.
12.2 Each Contract Officer, responsible for the procurement process, shall be responsible for publishing information regarding the contract onto Contracts Finder and Find a Tender Service, through the Council’s e-tendering platform, within 30 days of award. Where a member of the Council’s Procurement team is responsible for the tendering process then they will undertake that responsibility instead.
12.3 The Officer responsible for procuring a Contract, Framework Agreement or Dynamic Purchasing System whose value is estimated to exceed the Procurement Threshold shall maintain a record of each procurement and shall draw up a written report complying with the provisions of Regulation 84(1-5) of the UK Regulations.
12.4 All procurement procedures shall be documented regardless of value and the documentation retained for 3 years from the date of award of contract.
Contract Standing Order 13: Contract Modification
13.1 Funding must be identified before any modification of an existing Contract which will require the Council to provide additional funding is approved.
13.2 Subject to Contract Standing Order 13.1 an existing contract may be varied in accordance with specific provisions provided for in the Contract.
Section B: Section B: Contract Standing Orders which apply ONLY to Social Care & Public Health Services and other Light Touch Regime Service Contracts
13.3 A modification not provided for in an existing Contract may be implemented subject to Contract Standing Order 13.1 and the approval of the relevant Corporate Director or Senior Officer provided that the modification is permitted in accordance with the provisions of UK Regulations.