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Procurement of Social Care Services
Trowers Public Insight

Procurement of Social Care Services

The procurement of social care services falls within section 7 of the Public Contracts Regulations 2015 ("PCR 2015") and as such contracting authorities have flexibility over the manner in which they go out to tender for such services.All contracting authorities should comply with section 76 of the PCR 2015 and ensure that the procurement process complies with the principles of transparency and equal treatment of economic operators.

Transparency and Equal Treatment
Each contracting authority should consider each social care services procurement individually but the following points should be considered to ensure transparency and equal treatment throughout the procurement process:

  • Set out the award criteria and provide the criteria to all bidders prior to the submission of tenders.
  • Provide all documentation relevant to the tender process to all bidders at the same time, including responses to non-confidential queries raised by other bidders.
  • Ensure that each bid is marked consistently against the references to the criteria.
  • Where there is an incumbent contractor, check that there is no conflict of interest on the contracting authority's evaluation panel (e.g. a bias for or against that incumbent contractor).

What happens if it goes wrong?
An unsuccessful bidder can issue proceedings against the contracting authority alleging a breach of the PCR 2015. The contracting authority will not be able to award the contract to its preferred bidder until proceedings complete or are withdrawn. The implications of a challenge are:

  • A hearing for injunctive relief can cost in the region of £100,000 with the same again if the hearing proceeds to a full trial.
  • Contracting authorities may be asked to provide an undertaking (i.e. a payment into court) to cover the challenger's costs in the event they lose at trial.
  • The contracting authority will need to provide the service, either itself or through its incumbent contractor, until the new contract can be awarded to the successful bidder which will increase costs.
  • Where a court determines that the procurement has not been carried out in compliance with the PCR 2015, the contracting authority will have to pay damages to the challenger.
  • If the contract was not awarded in compliance with the PCR 2015, the contracting authority will have to conduct the procurement process again.

Concluding Comments
Where the contracting authority is free to determine the nature of the procurement process, such as for social care services, there is a danger that the procurement could become more relaxed and informal which may increase the risk of a challenge from an unsuccessful bidder.

Contracting authorities should remember to promote transparency and equal treatment throughout all procurement processes, including those more flexible procurements. It is costly and time expensive for a contacting authority to have to defend a procurement challenge.

Legal advice should be sought to review the proposed procurement documents prior to submission and those legal advisors should be referred to throughout the procurement process as queries arise.

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