The Scottish Government has published analysis of responses to its consultation on the Procurement Reform (Scotland) Bill. While further developments on that bill are awaited, it is useful to pick up some other developments across the UK, in the field of public sector commissioning and procurement, relating to social care.
New European Directives - update on progress
Thirteen months after the European Commission issued proposals for modernising procurement, the European Parliament put forward its amendments to those proposals on 13 January 2013. The European Parliament proposes higher contract value thresholds above which the new directive would apply in Member States. Along with a proposed threshold increase from €200,000 to €500,000 for supplies and service contracts for non-core government there would be a threshold increase from €500,000 to €750,000 for the proposed new category of "social and health services". Watch this space for further developments between now and the proposed implementation of the new directive in Summer 2014.
Social Care - Self-directed support
In Scotland, the Social Care (Self-directed Support) (Scotland) Act 2013 received Royal Assent on 10 January 2013. A further ministerial order is needed before most provisions come into effect but public sector commissioners and those providing care services will wish to familiarise themselves with the detail and what it means for them.
Social Value (England and Wales)
Parts 1 and 2 of the Public Sector (Social Value) Act 2012 came into force on 31 January 2013.
News from Court
We pick up here on two challenges to procurement procedures, raised not by aggrieved bidders but by end-users of tendered services. This is something for those involved in the commissioning and procurement of social care services also to be aware of.
Service users on evaluation panels
In England, the Queens Bench (Administrative Court) (AJ v Calderdale BC [2012] EWHC 3552) was asked if an authority in England was right to exclude service users from its panel evaluating tenders, in a procurement for residential services to disabled persons. Previously service users had been included in evaluation. The Court decided in October 2012 to quash the authority's decision to exclude service users, confirming that using service users in an evaluation panel would not, in itself, breach Regulation 4 of the Public Contracts Regulations 2006 and the authority had erred in law in thinking that would be the case.
Equalities Act considerations
The case of R (on the application of RB) v Devon CC examined whether the public sector equality duty imposed by the Equality Act 2010 s149 applied to a procurement of health and care services for children. Equality impact assessments (EIAs) were carried out and found there would be no impact on people with protected characteristics - because the service being provided would not change (irrespective of who won the contract). Also there would be a contract clause on equality matters. However, there was a parental challenge, on behalf of two children in receipt of the services on the basis that there had been a failure to discharge the public sector equality under section 149 (at the time of the decision to appoint).
The court found that there had been a failure to discharge the public sector equality duty under section 149 because, whilst an EIA had previously been undertaken, it was not made available to those taking the decision to appoint and did not form part of their decision making process.
However, the court decided not to quash the decision on the grounds of good public administration, including considering that:
- Re-running matters would cause significant disruption to children.
- The challenger was unable to show that either she or her children would be adversely affected by the appointment of the new provider.
- A subsequent EIA had been carried out.
This case outlines the importance of considerations under the Equality Act 2010 in the context of procurement decision making.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
