CCPS were part of the working group created to revise the 2010 guidance in light of changes to procurement and social care legislation more widely. CCPS raised the following areas issues for consideration in the new guidance:
The guidance should give a clear, unequivocal statement on the applicability of procurement law to Option 2. At the moment Option 2 development is being held back by lack of clarity on whether the value of packages purchased on behalf of individuals under Option 2 are cumulative or not. This is important because if this is the case the cumulative value of the contracts could ‘trip’ the EU threshold and trigger a re-tender. This could lead to the person’s individual choice being disregarded due to concerns about procurement law.
The guidance should make clear that codes and standards of social care practice apply to the procurement of social care, as well as the practice of social care. Social care is a whole system – from the way it is planned (commissioned) purchased and provided. Quality care for supported people can only be provided if commissioning and procurement consider how their actions support the quality and effectiveness of support for the end user- supported people.
The guidance should encourage procurement staff to consider the risk to the individual of competitive (re) tendering rather than focussing solely on the risk to the authority of legal challenge under procurement law. S.76, 9 a-e of the 2015 regulations lists the following criteria that contracting authorities may take into account on award of social care contracts:
- The need to ensure quality, continuity and accessibility of service.
- The specific needs of different categories of users (supported people.) including disadvantaged or vulnerable groups.
- The involvement and empowerment of users (supported people.)
The guidance should make clear that there are alternatives to the procurement process. With the recent changes to procurement law in Scotland there is more flexibility for contracting authorities as to whether they need to tender or not for contracts under the EU threshold of €750,000. This means there is a space for developing alternatives beyond in-house delivery and grant award.
Where procurement is necessary, the guidance should give good coverage to the range of dialogue/collaborative methods available to a contracting authority. The 2015 procurement regulations outline the range of processes available to contracting authorities. However the default current approach in Scotland is to competitively tender for services (either in a single stage or as a ‘mini-competition’ for individual contracts on a framework) with minimal service user and provider consultation, let alone co-design or collaborative approaches. The guidance needs to reassure contracting authorities that pre-procurement collaborative methods such as PSPs and alliancing should become the norm in social care- not the exception.
The guidance should make clear that strategic procurement supports strategic commissioning and that commissioning intentions should be reflected in procurement process. Contracting authorities should be encouraged to make reduce the current disconnect between the two processes where e.g. a partnership approach to commissioning on paper translates as a high control/specification competitive retender in practice