Contract Evalution

8/6/2019 Contract Evalution

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From Commissioningto Contract EvaluationUNISONs guide to campaigning andnegotiating around procurement


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From commissioning to contract evaluation

Contents

Chapter page

1 Introduction the background to commissioning and procurement _________________________________ 3

2 The politics behind procurement and commissioning _____________________________________________ 6

3 Understanding the main stages o the commissioning and procurement process ____________________ 10Diagram 1: Understanding the main stages o commissioning and procurement ____________________ 12Diagram 2: The main stages o commissioning and procurement and the gateway review process _____ 13

4 Stage 1: pre-procurement __________________________________________________________________ 14A: Negotiating a service trans ormation and procurement agreement ______________________________ 14B: developing a branch strategy _____________________________________________________________ 17C: employment issues _____________________________________________________________________ 20D: the public sector equality duties and equality impact assessment ______________________________ 23

5 Stage 2: moves towards procurement ________________________________________________________ 26A: Service reviews and improvement plans ____________________________________________________ 26Diagram 3: rom service review to business case _______________________________________________ 28Diagram 4: Government procurement cycle and gateway reviews _________________________________ 29Table 1: The scope o a service improvement plan ______________________________________________ 34Table 2: Extract rom an SIP action plan ______________________________________________________ 35B: options appraisal, in-house bids and business cases _________________________________________ 37

6 Stage 3: Active procurement ________________________________________________________________ 44Diagram 5: the active procurement phase _____________________________________________________ 45

7 Stage 4: post procurement _________________________________________________________________ 58

8 Procurement and the law ___________________________________________________________________ 62

9 Appendices ______________________________________________________________________________ 66Appendix 1 contract notice/OJEU notice ____________________________________________________ 66Appendix 2 Pre-quali cation questionnaire ___________________________________________________ 68Appendix 3 sources and urther in ormation __________________________________________________ 70Appendix 4 Use ul websites/contacts _______________________________________________________ 71

Glossary o acronyms ______________________________________________________________________ 72

Produced in association with the Association o Public Service Excellence (apse.org.uk)


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UNISONs guide to campaigning and negotiating around procurement

In recent years commissioning and in particularprocurement has become the centrepiece o the governments modernisation strategy. TheUK government has sought to use procurementto pursue a policy agenda about how publicservices should be delivered and to achievee ciencies across the public sector.

The move to a procurement exercise will o ten becoupled with claims that improvements can bemade and money can be saved, sometimes to bere-invested in ront line services. It is important toremember that procurement, particularly tenderingand large scale procurement programmes, havetheir own costs in time, money and morale.

These costs and their impact on services, or thealleged uture bene ts o the procurement exercisemust always be ully considered and taken intoaccount as part o the real cost o procurement.

This guide is not intended as a detailed explanationo the law or the vast amount o technical in ormationabout procurement. It is intended to be used as ahandbook which will allow you to be clear about yourstrategy, enable you to access and deploy resourcesand identi y the key pressure points within theprocess where you can maximise the opportunity toinfuence the outcomes o the procurement process.

Within the guidance you will nd boxes labelled KeyIssues. These are reminders o UNISONs role, ourpolicy and the things that we should be thinking about

during procurement activities. Other boxes labelledKey Actions contain lists o actions that should betaken to ensure that UNISON is taking a pro activerole in retaining in house services and protectingthe terms and conditions o our members. Wherethis is not achievable or an option, this guide givesaction and advice on how we can secure maximuminfuence in the procurement process to protect ourmembers employment/terms and conditions.

Why is commissioning and procurementa key issue or UNISON?

UNISON is ublic s vic s union. I s m mb s m loy d in NhS, loc l ov nm n , olic nd

s vic s, ob ion nd duc ion nd c ild ns s vic s.t commissionin nd ocu m n nd could l d

o m n ion in d liv y o ublic s vic s ndcould s ns o ous nds mo jobs o ivcom ni s nd/o volun y nd communi y s c o s.

I could l d o b k-u o n ion l b ininm wo ks nd o n i lly und min ms nd

condi ions o m ny UNISON m mb s, includin i nsionb n s. t is is d s i ov nm n commi m n s o nsu in

os c d by s ns s will no v im loym n i s nd nsions und min d by ou sou cin

jobs nd o voidin c ion o wo i wo k o cwi s m loy d on di n ms nd condi ions.

O cou s UNISON w lcom s s u o y o c ion om loy s o d d by cod o c ic on wo k o c

m s. Bu is is di cul o olic nd v n d on o c . t only u n o s u din jobs nd

s vic s in lon un is o nsu y in dnd d liv d s s ossibl by in- ous ms.

UNISON n ds o in s on o nis ion loc ll v l nd sus in in i y o i s loc l b inin ndn o i ion m c in y. t is w y i is vi lly im o n

UNISON b nc s c bl o s ondin c iv lyo ini i iv s by ublic u o i i s w ic could l d o

ou sou cin o s vic s nd con inu o su o m mb sns d o iv con c o s. Ul im ly is is bou

UNISON o nis ion nd m mb s i nd n d o

s v s n o uni d ublic s vic s union.

The purpose o this guide

This agenda poses big challenges or UNISON,particularly at branch level.

Research by UNISON shows that when brancho cials get involved in the procurementprocess early they are more likely to infuenceand shape an authoritys decision.

This handbook is designed to provide twoimportant areas o support or branches:

1 / Introduction the background to commissioning and procurement


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in ormation about what procurement in the publicsector is likely to look like i it is carried out properly

guidance on the UNISON agenda and how to work

e ectively to deliver this by taking appropriate actionprior to and within the procurement process.

While UNISON is actively opposed to the privatisationo public sector services, we recognise that i we areto e ectively protect public services and our memberswe have to both understand and ully engage inthe procurement and commissioning process.

Terminology

You will nd that a number o terms are usedthroughout this guide to re er to a process o acquiringpublic goods, works and services through some

orm o competitive procedure. A brie summaryo some o the terminology is listed below:

Commissioningt m is us d in i s b o d s s ns o m n ol

o m d by ublic u o i y o c oss ublic u o i i s(join commissionin ) in d minin n ds nd b sm ns o s cu in ou com s o communi i s nd s vic

us s u ilisin ll o v il bl sou c s ( ublic, iv ,volun y) v il bl . t is c n involv di n w ys o ovidins vic s nd c n involv ocu in s vic s x n lly. I sdi n m nin s in l nd soci l c con x , bu scom o b ssoci d wi n o c o ocu m n con n s ol o ublic u o i y o o s icd cision m k w ic ocu s o commissions s vic s

om s d liv y n s m y lso b in ublics c o bu mos lik ly o b iv s c o com ni s.

S ic commissionin . t is m ns ol o ublic body is s ic d o jus d cidin w s vic s

s ould b ovid d. I n buys s in om iv s c o n ovidin m in- ous .

Procurementt oc ss us d by ov nm n s, ion l nd loc l

ublic u o i i s o bodi s o ob in oods, wo ks nds vic s wi x y mon y. a ocu m n oc ssm y b l l nd c nic l oc ss by w ic ublicbodi s s k bids om iv , volun y/ i d s c o

nd in- ous , bu i is no n c ss ily com i iv .

Contestabilityt x n o w ic m k o ovision o oodo s vic is o n o l n iv su li s. p ovincon s bili y do s no n c ss ily involv com i ion

nd m y involv o m ns o b in in ssu ob on mono oly ovid s w ublic o iv .

Competition an nvi onm n in w ic individu ls nd o ms bid o

in s o m k o s ll oods nd s vic s.

In i ly con s bl m k com i ion is oc ssby w ic ic s minimis d nd o s k wconomis s o s no m l l v ls. In l ss con s bl

m k o s, nd o ic s, c n nd do is o f c domin n osi ion o sm ll numb o su li s.

Market testingex minin m k o s blis w is l v l oin s nd o c ci y o ovid oods nd s vic s nd od min o i s i s o com i ion. t do con s bili y c n b s blis d ou is oc ss.M k s in m y involv som o m o com i ion, bucould qu lly ly o soundin ou n o su li s ob nc m kin cos s nd o m nc ins no su lio su li s (commonly d o s so m k s in ).

Clientt cli n ol is unc ion o m d by ublic

u o i y in l nnin nd ov s in ocu m nx cis , w din con c nd n moni o in

con c o m nc on b l o ublic u o i y.t s ion o cli n ol om s vic d liv y

ol is som im s d o s cli n /con c o s lio u c s / ovid s li . I is lso ssoci d wi

commissionin ol in loc l ov nm n nd in l ,l ou i m y no lw ys b d o s cli n ol .

Intelligent clientt di ion l cli n ol is mos di c ly ssoci d wicon c moni o in , ym n nd o m nc . t is w s

bou clos su vision o con c o nsu i s msw ully com li d wi by con c o nd o u o isv i ions o con c s w o i nd o issu

n l i s nd n nci l d duc ions o non- o m nc o con c . t so-c ll d in lli n cli n is su os d

o ovid s ic di c ion nd i l v l uid nc o con c o , s ood sound d on w ic o b s d cisions,

nd o m nc m n s con c n u lymoni o s i s in di ion l cli n ol . I is su os d

o wo k in n s i wi con c o n mo dv s i l n u o di ion l cli n ol .

Thin clientt in cli n lso som im s d o s l n cli n

s n m im li s sim ly m ns cli n o nis ionwi numb o s nd in n l sou c s b inin n ion lly sm ll. t in n ion is con c o s would

ovid f xibl sou c nd skills o com ns o is.


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Within this guide we will coverthe ollowing key points:

Commissioning and contestability are beingmainstreamed in all public services. This is drivingmore services into competitive tendering with someauthorities taking steps to increase competitivemarkets. E ciency targets and the shared servicesagenda also drive this approach.

Procurement no longer starts with the issue o a Contract Notice in the O ce Journal o theEuropean Union (OJEU) and trade press it nowstarts much earlier with the assessment o serviceper ormance and options appraisal.

Involvement and action by branches at theassessment o service per ormance and optionsappraisal stages is vitally important. Decisions will bemade at these stages whether the service will remainin-house with a service improvement plan or whethera procurement process will be commenced.

Branch strategy should try to eliminate the need tocommence a ormal contracting process, and i thisis not possible, ensure that an e ective in-house bidis submitted.

Arguments and tactics to de end members termsand conditions and employment security.

Branches cannot assume that the publicauthority will automatically allow an in-house bid.

The authority may argue that i a service is notper orming well then management and/or localpoliticians may assume that another provider willbe able to improve per ormance. They may thinkwhy spend money preparing an in-house bid whenwe are looking or e ciency savings?

Under the commissioning model public bodies mayno longer have the capacity or expertise to alsodeliver services

What our legal entitlements are at various stageso the commissioning and procurement process. Itwill clari y that there is greater legal entitlement orengagement in the more ormal procurement phase,but it will contain advice on how we can get involvedat all stages o the process.

Procurement is not simply a technical or legal

process. Political decisions are made at variousstages such as the criteria used to evaluate options,the extent to which the authority stimulates orcreates markets and whether it supports an in-house bid. For example the questions asked in a

Preliminary Invitation to Negotiate (PITN) inevitablyhave a political content. In addition branches needto ensure that procurement o cers and managers

do not treat procurement solely as a technical andlegal process. Branches should ensure that, whereappropriate, local councillors are made aware o progress and developments. Larger projects shouldbe reviewed by overview and scrutiny committees inlocal authorities at key stages o the commissioningand procurement process.

Key issues or UNISON in in uencing the earlystages o commissioning and procurement

UNISON b nc s s ould nsu y v si ni c ninvolv m n k y s s o commissionin

nd ocu m n oc ss. t s includ : p p ocu m n

d nin o u u n ds; Mov s tow ds p ocu m n

ss ssm n o cu n s vic o m nc n d o in- ous s vic im ov m n l n id n i y n d, sco , cos , isk o ocu m n d cision o in cu n ovid oini i ocu m n oc ss o ions is l c i i includin im c ss ssm n ;

o ions is l ac iv p ocu m n s l c ion o o ions includin in- ous o ion su o in in- ous bid

and ll s s s cu vi ws o s vic us nd s ass ssm n s nd d cisions will b m d bou

cu n o m nc o s vic nd w n in-ous o ou sou c d s vic c n b im ov d o no .

t bo di c nd indi c i s, w ic coulds ocu m n oc ss. poo o m nc , ssu

o ci ncy s vin s nd s d s vic s oj c s, oocom nsiv o m nc ss ssm n s o in n l su o

o s ic s vic -d liv y n s i (SSp) could i ocu m n oc ss. C i l oj c s, commission s

movin di c ly o ou sou cin , ns o s vic so ms l n com ni s nd us s nd oli ic l do m

could lso b di c i s o ocu m n oc ss.I is vi l b nc s y is b s d on

cl und s ndin o k y d iv s b ind you ownu o i ys d cision o s ocu m n oc ss.


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The UK wide context

Public authorities in England are now expected toadopt commissioning, competition and contestabilitystrategies in the provision o all services. These areseen as essential tools to secure service improvement,service trans ormation, and value or money inpublic services. There is also an expectation thatnew investment and development will be deliveredthrough partnership. It should be noted that whilethe policy drivers behind procurement are similar inall parts o the UK this is not a universal position.

In Wales there is a di erent approach which stressescollaboration and co-operation across the publicsector and in Scotland at policy level a commitmentto delivering better quality public services throughpartnership working and co-operation. However,the general thrust o public policy on procurementposes challenges across the whole o the UK. Forexample in local government there have been majortrans ers o services to the private sector throughStrategic Service Delivery Partnerships (SSDPs). InWales and Scotland, although PFI is not avoured byeither administration it has been used as a means o delivering investment in public sector in rastructurein health and local government. In Scotland the termPublic Private Partnership (PPP) is used or the type o in rastructure projects more commonly re erred to asPFI in England. A derivation o PFI is being promotedby the SNP called the Scottish Futures Trust (SFT).

A new public services ramework introduced inEngland as a result o the Local Governmentand Public Involvement in Health Act 2007is underpinning a wide and increasing use o markets and competition in the delivery o publicservices, guaranteeing that procurement willremain centre stage or the oreseeable uture.

There is also strong pressure on budgets in all ourcountries, and a regime o very challenging e ciencysavings. Despite signi cant cost pressures counciltax in England rose by an average o less than 4% in

2008/09, the lowest increase or over a decade. InScotland council tax was e ectively rozen or 2008/09.

The e ciency agenda adopted by governmentsacross the UK has expanded into the shared services

agenda. Annual e ciency targets o around 3%are accompanied by pressure to draw up sharedservices projects with other public bodies, particularly

or corporate and transactional services. In Englandthis e ciency drive ollows on rom the GershonReview, in Scotland it is called the Trans ormingPublic Services agenda, in Wales it is part o theMaking the Connections agenda and in NorthernIreland the Dra t Priorities and Budget 2005-2008 document issued by the Northern IrelandO ce sought 588m o e ciencies by 2008.

Against this background, the process o optionsappraisal, the procurement process itsel and contractmanagement all have a key role in decisions aboutwho provides services, how they are delivered, theirquality and the terms and conditions o the sta .

Political orms o procurement

Procurement is a legal and technical process but thecontext in which it is undertaken and the decisionsmade in the commissioning and procurement processare highly political. This section looks briefy at: marketisation o public services commissioning and contestability Public Private Partnerships e ciency and shared services agendas social enterprises and voluntary and community

bidding opposing the contract culture.

Marketisation o public services

The marketisation o public services is driven by aliberal or neo-conservative economic philosophy. Ithas a number o components such as a belie in thesuperiority o markets; that competition drives downcosts; that the private sector is more e cient andinnovative than the public sector; and that individualchoice will improve the quality o services. It is alsoclaimed that extending choice in public services will

reduce inequality because market orces are believedto be an equalising mechanism. The school o thoughtmost associated with marketisation is known asNew Public Management (NPM) which provides theintellectual support or e ciency and downsizing

2 / The politics behind procurement and commissioning


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as successive governments have sought to moveunctions rom the public sector into the private sector.

For a description o NPM see the APSE publication

Towards a Future or Public Employment (2007).

Public services are being marketised in our ways: the speci cation o services the reorganisation o

work so that it can be contracted the introduction o market mechanisms in the

nancing, organisation and management o publicbodies

treating service users as individual consumersand reducing direct democratic accountability bytrans erring responsibility to new companies, boardsand trusts

embedding business interests in public policy-making.

In England, where the government is leading thisagenda, its method o increasing choice in publicservices inevitably means that it will be exercisedthrough competition between schools, hospitals andother public acilities and the introduction o market

orces. Procurement will have a central role in theexercise o choice as public acilities and services seekto compete by cutting costs and improving quality.

Commissioning and contestability

Commissioning has been described as the meansby which the public authority seeks to secure the

best outcomes or their local communities by makinguse o all available resources without regard or whether services are provided in-house, externally or through various orms o partnership (Departmento Communities and Local Government, 2008).

The Department o Health (England) has a similardescription o world class commissioning: The

commissioning process involves assessing and prioritising population needs, ocusing on strategic outcomes, procuring services, and managing providers to deliver the required outcomes (Department o Health, 2007).

The Department or Children Schools and Families(England) description o commissioning childrensservices is: Developing an overall picture o childrens needs within an area, and developing

provision through public, private, and voluntary and community providers to respond to those needs.

It is worth noting that while the guidance re erredto above relates to England only, it has resonanceacross the public sector. While the context may bedi erent, the issues are essentially the same.

A number o public authorities are exploring thecommissioning approach. In each case the outcomeis likely to be a signi cant shi t away rom direct

service provision and, over time, a reduction in internalcapacity. This is because the model is based on thenotion that e ective commissioning does not requireoperational expertise. The so called intelligent clientis expected to be skilled in procurement, not servicedelivery while the concept o the thin or superclient clearly envisages a minimal organisation. Undercommissioning the public organisation o the uture inlocal government or in health is expected to enableothers to provide rather than to act as a provider itsel .

Contestability and making markets

The UK government is concerned that, parallelwith procurement, local authorities and publicorganisations should help to make markets, inother words, take initiatives to improve the capacityand competitiveness o the supply side (privateand voluntary sector contractors) and minimise

ragmented commissioning. The intention is toincrease the contestability o public sector servicemarkets as well as to address perceived weaknessesin the e ectiveness o the public sector as a client.

Public Private Partnerships

In England the Private Finance Initiative (PFI)has been used or in rastructure projects in localgovernment, health and other public services. PFIcontracts are normally or a period o 25 to 30 years.In Northern Ireland all major public investment iscontrolled by the NI Strategic Investment Boardwhose pre erred route or delivery is PFI and inScotland, despite promises to abandon its use, aderivation o PFI/PPP, the Scottish Futures Trust,

is being promoted by the SNP-led government.

In addition, the NHS Local Improvement Finance Trust (LIFT) programme is used to renew primaryhealth care acilities. A LIFT company 60% privatelyowned rents premises to doctors, pharmacies andother health organisations and retains ownership o the assets a ter the 20-year agreement expires. It hasan exclusivity agreement to undertake the provision o additional acilities/services during the contract period.

A Strategic Service-Delivery Partnership (SSDP) is a

long-term (usually 10-year with an option or a urtherve years but can be longer) multi-service, multi-million

pound contract between a local authority, or otherpubic body, and a private contractor. Anything rom 50to 1,000 sta will be trans erred to a private contractor


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or seconded to a joint venture company (JVC). Therange o services usually include IT and relatedservices such as human resources, payroll, revenues

and bene ts, nancial and legal services and o teninclude property management and other pro essionalservices (highway management, technical services).SSPs can also be used to outsource ront-line servicessuch as waste management and street scene servicesas well as pro essional, back o ce or support services.

Building Schools or the Future (BSF) programmesare similar to LIFT and are used or projects tobuild new schools and re urbish existing schools.

They usually include both the construction and therelated acilities management roles, such as propertymaintenance, grounds maintenance and sometimesin ormation technology and building cleaning.

E fciency and shared services agendas

The Comprehensive Spending Review 2007 setout Labours spending plans to 2010/11. The taxtake will increase by 1% o national income (14billion) while public spending will be cut by 0.5% o national income (7 billion). The Institute or FiscalStudies concludes that this would, i delivered,take the tax burden to a 24-year high and publicspending to an eight-year low (IFS, 2008).

The e ciency agenda right across the UK is a keypart o the modernisation agenda, and will be adriver or procurement. It has gained even greatersigni cance in the light o the recent nancial crisis.

Social enterprises and voluntary sector bidding

Governments across the UK are encouragingcommunity and voluntary sector organisations (CVS),

and social enterprises (sometimes known as the thirdsector) to bid or public service contracts; in Englandcouncils and NHS trusts/PCTs are being encouragedto ensure that these organisations are included inmarket analysis and in ormed about contracts. It isworth noting that in some governmental and policycircles procuring services rom the third sector isseen in ideological terms as being a kind o third waybetween the public and private sectors and havingmany o the bene ts o private provision but withoutthe pro t motive and a more public service orientation.While UNISON is supportive o the role played by

CVS organisations in providing niche services, andthere are many UNISON members who work in thesector, UNISON does have concerns about CVSorganisations delivering mainstream services andbeing seen as a substitute or public sector provision.

Co-production co-production is a term thatis normally de ned as citizen involvement in, orparticipation in, the delivery o services. At its most

benign this can involve local people in communityclean-ups or the use o volunteers in day centres,but it has other connotations which involvetrans erring responsibility or service delivery orassets over to individuals or groups. One bene tclaimed or such an approach is engaging andempowering citizens, but it has been claimed thatempowering individuals and citizens in this way canalso reduce the burden o public expenditure. Thedanger is that this could be used as a pretext orcutting spending on public services. UNISON alsobelieves that genuine co-production must involvethe sta in shaping the delivery o services.

Opposing the contract culture

UNISON supports the need or e cient, responsiveand high quality public services and believes that thetrans ormation o public services can be achievedby using di erent strategies, which avoid thenegative impact o marketisation and privatisation.

Key arguments or UNISON in opposingcommissioning and contestability.

I duc s ocus on in- ous im ov m nl ns, in- ous o ions nd submission o in-ous bids nd l ds o inc s d ou sou cin nd

ppp oj c s us c in vicious ci cl . public s vic inci l s nd v lu s od d

s busin ss c ic nd comm ci l v lu sinc sin ly domin s vic d liv y.

t ow o ms l n com ni s, us snd join v n u com ni s will l d o

m n ion o s vic d liv y, ducind moc ic ccoun bili y nd ns ncy.

public s c o sou c s div d in o m kinm k s by s in con c s o sui busin ss,consul in busin ss in s s nd d si nin busin ss-

i ndly ul o y m wo ks. t no ion o c in mix d conomy nd l v l l yin ld sim lis ic

nd i no conomic li i s o iv s c oc y ickin , c oss subsidisin con c s, usin lossl d s i s nd x loi in wo k o c .

a cli n -con c o s li is im os d on s vicd liv y ollow d by ns o in- ous s vicd liv y uni s o ms l n din o nis ionso com ni s nd i v n u l iv is ion.

public s c o m loy s will b mo ul lyns d b w n m loy s wi cons qu nc s

o con inui y o ms nd condi ions,


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nsions, inin nd c d v lo m n . Issu s o qu li y in ms o m loym n nd

s vic im c mo lik ly o b ov look d by

comm ci l o o s w o will only y n iono v y minimum l l qui m n s Job s cu i y is d nd n on tUpe, tUpe plus

nd s condm n bu y v w kn ss s ndqui loc l u o i i s o moni o m loym n

c ic s o con c o s. t is li l vid nc is is b in don now so c n b li l us

i will n in con c i ndly cul u . t sco o ublic m n m n is duc d s n

inc sin o o ion o s is n d in commissionin ,ocu m n nd con c m n m n . t l nnin ,

m n m n nd o ion l skills qui d o d liv ublics vic s inc sin ly k n ov by iv con c o s.

t is wid us o m n m n consul n s, l lnd c nic l dvis s s con c s l nd mo

com l x. t is is no only cos ly bu duc s c bili y oin- ous s vic s nd ul im ly l ds o mo iv is ion.

t v l dy b n mov s o ou sou c commissionini s l , w ic is lo ic l n x s i commissionin

nd con s bili y olicy is cc d. t is will involviv consul n s nd con c o s ss ssin n ds nd

s vic s, w i in s ci c ions, s l c in ou u s ndou com s, c yin ou o ions is ls, m n in

ocu m n oc ss, v lu in bids om oiv con c o s nd moni o in i o m nc .

Mo nd mo s d s vic s oj c s willby ss in- ous ovision nd lik ly oconsid only ou sou cin o ions.

a s o ublic s ndin will b bso b dby ns c ion cos s cos o m n m nconsul n s, l wy s, m n in ocu m n

oc ss, m n in nd moni o in con c s. t is isl dy div in sou c s om on lin s vic s.

I inc s s li nc on con c moni o in , w ic sly b n i o ous nd com nsiv , s i is o n

o bud ssu s nd ci ncy s vin s. Fin nci l s vin s x d. Com i iv nd in

s vin s w cl im d o b 25% bu ov nm n und ds c ov d conclusiv ly s vin s n d om

m ximum 8% o 16% cos (W i ld, 2001). t In n ion l Mon y Fund conclud d Muc o

c s o ublic iv n s i s s s on l iv ci ncy o iv s c o . W ils is n

x nsiv li u on is subj c , o y is mbi uousnd m i ic l vid nc is mix d (IMF, 2004).


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Introduction

It is important or UNISON branches to understandthe key stages o the procurement cycle in orderto develop an e ective branch/regional strategy.Procurement does not begin with a decision togo to the market to buy a service. The decisionto procure is normally preceded by a strategicapproach by the public authority which will be parto an agreed procurement policy or commissioningstrategy. This can o ten relate to other strategiesand policies such as a community plan/strategy,a corporate plan, an asset management plan, acustomer services plan or even an IT strategy.

The point to remember is that UNISON branches needto intervene at an early stage in order to infuence andshape the overall strategic approach o the publicauthority since this will impact signi cantly uponwhether the public authority will ultimately outsourcea service/activity or pursue an alternative approachinvolving service improvement and in-house services.

In Diagram 1 UNISON has broken down thecommissioning and procurement process into ourstages, set out below: The rules based active stage o procurement is only one stage.

Stage 1: pre-procurement

This is the stage which occurs long be ore a decision

to procure is made. It will usually set out the publicauthoritys strategic approach to the commissioningor outsourcing o public services. At this point thebranch can have the most impact in ensuring thatany strategic approach encompasses both support

or in-house services and the value o the work orce,trade union involvement, access to in ormation etc.Branches should always seek to ensure that e ectiveagreements are in place with the local authority,probation service, police authority, school, PCT orhealth trust which set out the broad principles o support or e cient and e ective in-house services.

Stage 2: moves towards procurement

This will usually involve a review o services o tenusing best value principles, but it could also involvethe engagement o external consultants to undertakean e ciency review or options appraisal. A key pointto note is that many such reviews involve all kindso assumptions and assertions about the bene ts o outsourcing. This is the point o the process in whichthe branch can be most e ective in challenging theprocess and putting orward alternative options.It is also the point at which a political strategy o opposition to outsourcing can be e ectively utilisedengaging with a range o stakeholders including themembers themselves, councillors, communities andservice users and the local media. Arguably the mostimportant point to establish at this stage is that anymovement away rom direct service provision shouldonly take place i it is justi ed by a detailed examinationo service and cost data. UNISONs twin track policyon commissioning and procurement is set out below:

UNISONs twin-track policy

S kin o infu nc commissionin nd ocu m n d cisionsou n o i ions isn n l n iv o c m i nin . t y bo vi l s o win- ck s y succ ss ully

ollow d by m ny UNISON b nc s. t is will usu lly involvc m i nin c ivi i s o x m l lobbyin ins

o os l o ou sou c s vic bu s m ims kin o infu nc nd in oc ss by n o i in S vic Im ov m n pl n o n in- ous bid o tUpe lus

m n . In m ny c s s indus i l c ion by m mb s m yv il d o s o n ou sou cin bu s s n n d

unions n o i in osi ion nd infu nc . t k y oin is c m i nin nd n o i in n l n iv s i s ndc n b mos c iv w n unnin lon sid on no

Stage 3: active procurement

Active procurement is where a decision to go to

the market, outsource or partner has been takenand the legal and technical process o procurementtakes place. This period usually has de ned stagesand timescales rom advertising the service ortender through to contract award and closure.

3 / Understanding the main stages o the commissioningand procurement process


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Depending upon whether there is an in-houseoption/bid, this is the period in which the branchshould be maximising support or the in-house bid

and/or securing the wider employment rights o the sta a ected. Nor does it preclude opposingprivatisation or challenging the process in terms o the validity o the approach and the key assumptionsunderpinning it, but it is o ten more di cult to securethe kind o changes that UNISON may want to seewhen the legal procurement stage is underway.

Stage 4: post procurement

When a decision to award a contract externally has beenmade and sta are being trans erred to another serviceprovider either in the private or third sectors, there is stillan important role or the branch to play. Agreeing thedetailed bargaining and negotiating arrangements withthe new employer and e ectively monitoring whetherthe relevant two tier work orce code is being appliedproperly is one aspect o this, but o ten public authoritieshave very weak client side monitoring arrangementsand governance arrangements in place or outsourcedcontracts. The Audit Commission study published inJanuary 2008 For better or worse: value or money instrategic service delivery partnerships ound exampleso inadequate investment in client-side contractmanagement, inappropriate risk allocation and poorper ormance management. UNISON branches can playa vital role in monitoring how contracts are per ormingby challenging public authorities on the arrangementsthey have in place or monitoring contracts. UNISONbranches can play a role in ensuring that local authoritiesand their elected members e ectively scrutinise externalcontracts through the overview and scrutiny unction.

They can also ensure that, at a regional and nationallevel, there is good intelligence about the impact o outsourced contracts and e ective learning aboutsuccesses and ailures in terms o branch strategy

and tactics. This will help the union to re ne andimprove the way in which it deals with procurementexercises that lead to service outsourcing.


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POST PROCUREMENT

ACTIVE PROCUREMENT

MOVES TOWARDSPROCUREMENT

PRE-PROCUREMENT

COMMISSIONINGAND

PROCUREMENT

UNDERSTANDING THE MAIN STAGES OF COMMISSIONING AND PROCUREMENT

FUTURE NEEDS ASSESSMENT EQUALITY IMPACT ASSESSMENT

SERVICE REVIEWS SERVICE IMPROVEMENT PLANS MANAGEMENT CONSULTANTS OPTIONS APPRAISAL IN-HOUSE OPTIONS/BIDS BUSINESS CASE

PROCUREMENT LAW ADVERTISING THE CONTRACT SELECTING SUPPLIERS INVITATION TO TENDER TENDER EVALUATION CONTRACT AWARD &

IMPLEMENTATION

CONTRACT MANAGEMENT MONITORING WORKFORCE

ISSUES BUILDING UNISON

ORGANISATION

Diagram 1 below sets out the main stages o the procurement process and the key issues

or UNISON at each stage o the process.

Diagram 2 opposite also shows the gatewayreviews that have been developed by the O ce orGovernment Commerce (OGC) as an independentreview o major procurement exercises to establishthe robustness o the procurement approach. Such

reviews are a technical assessment o the process,but the intention is that procurement should onlycontinue i it can ul l the requirements o eachgateway. A procurement exercise should onlyproceed to the next stage o the exercise i it does so.

While this is a technical process designed to supporte ective procurement by public authorities, the importance

or UNISON is that it sets out key stages o a procurementprocess at which that process can be scrutinised andcan provide an important opportunity or UNISON tointervene in order to challenge a procurement exercise.

The gateway process is explained at Section 5 o thisguide and the key points o intervention under thegateway and what UNISON can do are illustrated at therelevant section o the guide, as illustrated in diagram 2.


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P O S T P R

O C U

R E M E N T

A C T I V E P R

O C U R E M E N T

M O V E

S T O W A R D

S

P R

O C U R E M E N T

P R E - P R

O C U R E M E N T

D E F I N

E B U S I N E S S N E E D S

G A T E W A Y 0

S T R A T E

G I C I N V E S T M E N T

P R E P A R E B U S I N E S S C A S E

G A T E W A Y 1

B U S I N E S S

J U S T I F I C A T I O N

D E F I N E P R

O C U R E M E N T

A P P R

O A

C H

G A T E W A Y 2

P R

O C U R E M

E N T A P P R

O A

C H

C O M P E T I T I V E P R

O C U R E M E N T

G A T E W A Y 3

I N V E

S T M E N T D E

C I S I O N

A W

A R D

C O N T R A

C T

G A T E W A Y 4

R E A D I N E S

S F O R

S E R V I C E

M A N A G E I M P L E M E N T A T I O N

O F

C O N T R A

C T

G A T E W A Y 5

B E N E F I T S E V A L U A T I O N

M A N A

G E A

N D

O P E R A T E

C O N T R A

C T

C O M M I S

S I O N I N

G

A

N D

P R

O C U

R E M E N T

U N D E R

S T A N D I N

G T H E M A I N

S T A

G E S

O F C

O M M I S

S I O N I N

G A N D P R

O C U R E M E N T

G O V E R N M E N T P R O C U R E M E N T C Y C L E A N D G A T E W A Y R E V I E W S

F U T U R E N E E D S A S S E S S M E N T

E Q U A L I T Y I M P A C T A S S E S S M E N T

S E R V I C E R E V I E W S

S E R V I C E I M P R O V E M E N T P L A N S

M A N A G E M E N T C O N S U

L T A N T S

O P T I O N S A P P R A I S A L

I N - H

O U S E O P T I O N S / B I D S

B U S I N E S S C A S E

P R O C U R E M E N T L A W

A D V E R T I S I N G T H E C O N T R A C T

S E L E C T I N G S U P P L I E R S

I N V I T A T I O N T O T E N D E R

T E N D E R E V A L U A T I O N

C O N T R A C T A W A R D &

I M P L E M E N T A T I O N

C O N T R A C T M A N A G E M

E N T

M O N I T O R I N G W O R K F O R C E

I S S U E S

B U I L D I N G U N I S O N

O R

G A N I S A T I O N


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In this section we will cover: A: negotiating a service trans ormationand procurement agreementB: developing a branch strategyC: employment issuesD: the public sector equality duties andequality impact assessment.

A: Negotiating a servicetrans ormation andprocurement agreement

Introduction

As we have seen there is an immense amount o work and pressure within the public sector to adoptcommissioning, competition and contestabilitystrategies in the provision o public services. Althoughthis is most pronounced in England, other pressures,particularly budget savings, are increasingly placingprocurement centre stage in all parts o the UK.

Wherever possible UNISON branches shouldtake action to infuence the way this agenda isimplemented be ore a ormal procurement ortendering process begins in order to protectmembers and services. The aim will be to ensurethat the branch is ully involved rom the start o the process, well in advance o any decisionsbeing made by the employer or public authority.

Summary o key issues or UNISON branches:

1 Why should we get involved?I is im o n o UNISON b nc o v n m nwi i m loy o ublic u o i y w ic s s ou co o o c o s vic vi ws w ic includ sinvolvin union li s ossibl s in ny

oc ss. t is c n nsu vi l ly commi m n o olicy w ic commi s m loy o ublic u o i y o

su o in in- ous s vic im ov m n o v y l slw ys consid in o ly sou c d in- ous bid.

2 What will happen i we dont?I UNISON b nc s no involv d li s ossibls o oc ss, i is ossibl ublic u o i ycould do n o c o commissionin nd ocu m n

limi s o n s ol o in- ous s vic s ndsu o s ou sou cin s d o ion o s vicim ov m n . I could lso und min m mb s ms

nd condi ions nd u ublic s vic s und

3 What will happen i we do?t b nc will b in muc s on osi ion oinfu nc ov ll o c o ocu m n nd

4 / Stage 1: pre procurement


15/7615


nsu in- ous s vic d liv y is consid d s vi bl nd in som c s s d o ion.

4 How can we be involved?Und du y o b s v lu nd v ious uid nc issu dby ov nm n includin on wo k o c involv m n ,

d unions v n n i l m n nd ncou d ob involv d s s k old in vi win s vic s nd in

ny d cisions bou u u s vic d liv y. M ny UNISONb nc s will lso v in l c n xis in n o i in ndconsul iv oc du c n b us d o ood c .

5 What remedies can we use i we are re used involvement?W ublic u o i y ils o involv d unions in s ic d cision bou u u o s vic s, w, i

ny, l l m di s v il bl . how v , is nou w iin ms o xis in s u o y m wo k o su o UNISONb nc s in i um n s. a ublic u o i y w ic us s

o n wi UNISON m y b in b c o wid ublicdu y o consul k y s k old s nd could b c ll n d.

Service trans ormation and corporateprocurement agreement

A locally drawn up agreement should set outhow the employer/public authority will undertake

the key stages o a service trans ormation andprocurement process. The agreement shouldcontain a description o its scope, how it will beapplied at di erent stages o the trans ormationor procurement process, responsibilities, rights toin ormation and how sta and trade unions will beinvolved. An agreement should aim to establishcorporate best practice thus ensuring directoratesand departments ollow a common approach.

Service trans ormation will usually include servicereviews, e ciency reviews, options appraisaland procurement so UNISON should seek tonegotiate the ollowing in a Service Trans ormationand Corporate Procurement Agreement: A corporately agreed process or trade union and

work orce involvement in service reviews; e ciencyreviews, options appraisals; and all stages o theprocurement process.

Procurement could result in an alternative providero services. There ore the employer should adoptan approach which ensures that the option o anin-house service improvement plan (see Section 5)will precede and in orm the procurement process.

Thus whenever it is decided to carry out a ormalprocurement exercise it should include a clearcommitment to an in-house bid.

An agreed policy or managing job loss toavoid compulsory redundancies and maximiseredeployment opportunities.

A commitment to work orce developmentwhich maximises opportunities or training anddevelopment and recognizes the positive role o

trade unions and union learning reps in work orcedevelopment. A commitment to ully protecting the pay,

conditions, and pensions o the work orce wherepossible through a TUPE plus agreement andwhere possible and appropriate a secondment typearrangement.

Where this approach is not achievable the branchshould still seek to reach agreements that will ensurethat it is ully in ormed and consulted at all stages o aservice review and procurement exercise be ore anykey decisions are made. This may involve separateagreements on or example the unions involvementin designing and carrying out an options appraisal.

In ormation and confdentiality agreement

I the union is to be ully in ormed and able to infuencekey decisions it will need access to as much in ormationas possible. Some o the in ormation it receives maybe de ned as commercially con dential and i it isto be made available there will need to be a clearunderstanding about who in the union has access to thein ormation and how it is used. It is there ore importantthat an in ormation and/or a con dentiality agreementis negotiated which could include the ollowing: the key in ormation to be made available to the

trade unions at di erent stages o a service review,options appraisal and procurement process outsideo a commercial con dentiality agreement

clari cation o how public and con dentialin ormation is de ned and classi ed and therelevance and application o the Freedom o In ormation regulations

that the employer/public authority will seek

agreement with bidders that will ensure appropriateand timely access to in ormation and its publication

how con dential in ormation will be made availableto the branch and the how it will be used

the ormat o in ormation assistance in the interpretation o in ormation and

proposals - this may include nancial support to theunion to have complex in ormation analysed

responsibilities o the branch to maintain thesecurity o any sensitive or con dential in ormationmade available

responsibilities and responses i there is a breach o

con dentiality.Where the branch is asked to sign a con dentialityagreement it must seek advice rom the regionalo ce. Any agreement must be signed on behal o UNISON by a designated regional organiser.


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Key issue or UNISON on confdentiality agreements

as o ocu m n oc ss UNISON b nc s will

ob bly b sk d o si n con d n i li y m n s in in o m ion iv n o d union du in oc ssc nno b disclos d o i d i s o oduc d in ny

o m nd is in o m ion is us d sol ly o u os so ivin d unions o o uni y o comm n on

in o m ion iv n o m s o ocu m noc ss. Som im s is is s ic d w olly o m loym n

in o m ion includ d in nd o os ls ( tUpe/tUpe +nd nsions). how v , UNISON b nc s s ould ss ublic u o i y o includ wi in ny con d n i li y m ncc ss o comm ci l nd o s c s o nd bids.

t is m y b sis d by ublic u o i i s nd bidd s on ounds o comm ci l con d n i li y, bu UNISON

b nc s s ould ss o cc ss on b sis is n d o know in o d o c iv ly s n m mb s.

In ny v n , b c us o s ic ions l c d on uso in o m ion by d unions, UNISON b nc s s ould lw yss k dvic o ion l o c b o in o si n

con d n i li y m n . any con d n i li y m nmus b si n d by d si n d ion l o c o union.

Advantages o signing confdentiality agreements: ovid s l i im cc ss o in o m ion

on nd bids o UNISON b nc s llows UNISON b nc s o submi comm n s on

nd submissions o ublic u o i y nd on c iv ly wi bidd s ms lv s

ovid s n o o uni y o s n m mb s in s smo c iv ly w s ns s o os d.

Disadvantages o signing confdentiality agreements: in o m ion ovid d und m n

m y b s ic d o c in s c s o bids( m loym n o os ls) nd m y olimi UNISON b nc s bili y o c i iqu wid

n nci l nd c nic l s c s o o os ls. t s ic ions l c d on us o in o m ion ovid d

und con d n i li y m n s c n limi bili yo UNISON b nc s o in o m i m mb s boubidd s o os ls nd w y in w ic ublic

u o i y s d l wi m. I c n lso limi UNISONsbili y o us in o m ion disclos d o m s o wid oli ic l s y o o osin ou sou cin .

Newcastle City Councils corporate procurementstrategy makes a commitment to:

ovid o i in o m ion o s nd dunions ll s s o ocu m n oc ss s blis ul consul ion oc ss s wi s

nd d unions o i qu nci s ovid n o o uni y o d unions o comm n

on ll s c s o ocu m n oc ss k y mil s on s o ocu m n oc ss

cili m in s b w n d unions nd o n i lovid s k y s s o ocu m n oc ss

d unions will s l c i own s n iv so m in s wi con c o s nd si visi s

llow ull discussions b w n d unions nd Ci y

Councils d bidd io o con c w d us minimum o m o y nd ncy sdu in ocu m n oc ss, consis nwi s vic nd o ion l obj c iv s.

Key action points or UNISON branches

ensu co o ocu m n olicy o in c s o pCts pCt d v lo m n l n includ s

n m n s o s , nd d union consul ion ndinvolv m n b o ny k y d cisions m d ; in o m iondisclosu nd ovisions o s in con d n i lin o m ion; nd ull involv m n in o ions is l

nd o k y s c s o ocu m n oc ss. ass ss sco o ny xis in m n o olicy

nd i n c ss y n o i visions o n w on s. M k su ocu m n olicy/d v lo m n

l n llows o o ions is l b o o m l ocu m n oc ss is comm nc d.

S k commi m n o su o in- ouss vic s nd o includ o ly sou c d in-

ous bid in ny ocu m n x cis ensu olicy dd ss s sus in bl d v lo m n ,

communi y w ll b in nd qu li i s nd ovid s c i io ss ss soci l, conomic, qui y nd nvi onm n l

im c bo o ions is l nd bid v lu ion s s. ensu ocu m n olicy ully im l m n s

l v n cod o c ic on wo k o c m s( o o c ins wo- i wo k o c ) nd

cos o moni o in wo k o c is includ din o ions is l nd bid v lu ion.

p ss o n d olicy minimiz s job loss s ndm ximiz s o o uni i s o s inin nd d v lo m n .

N o i n in o m ion m n nd w

o i con d n i li y m n


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B: Developing a branch strategy

Introduction

This section stresses the importance o puttingin place a well thought out branch strategy inresponse to a proposed procurement exercise.

We have already emphasised the importance o taking early action to infuence the agenda be orethe ormal procurement or tendering processbegins. Key to this is the service trans ormation andprocurement agreement that aims to ensure thatthe union is ully consulted by the public authority atthe beginning o the procurement planning stage.

There will also be situations where the branch is notconsulted and is aced with a threat to move to the

ormal procurement stage immediately, or where adecision in principle has been taken to enter intoa contract/partnership with the private sector.

Summary o key issues or UNISON branches

1 Why should we get involved? UNISON b nc s n d ov w ll ou ou nd o ly sou c d b nc

s y i y oin o b c iv . I is di ncb w n c in in n d oc w y o o os ls w icm y l d o ou sou cin o s vic s o b in bl o

l n UNISON in v n ions k y s s o oc ss.2 What will happen i we dont?UNISON b nc s will no

v c ci y o s ond o oc ss w ic could v yquickly b com ocu m n x cis w in- ouss vic im ov m n o ion is m in lis d, ms ndcondi ions n d nd qu li i s issu s i no d.

3 What will happen i we do? W ll l nn d in v n ionsollowin on om cl b nc s y c n, nd v ,l y d n im o n ol in v n in ocu m n

x cis nd buildin su o in ublic u o i y ndmon UNISONs m mb s i o n in- ous im ov m ns y, o c in ms nd condi ions nd s vics nd ds includin du consid ion o qu li y im c .

4 How can we be involved? D v lo in b ncs y is s onsibili y o individu l UNISONb nc s in consul ion wi ion l o c .

a b nc s y n ds o b s onsiv o loc lci cums nc s w il f c in UNISONs n ion l

olici s on commissionin nd ocu m n .5 What do we need to do? M k su b nc m s

n ly s o l n i s s y. Involv ion lo c ; d cid on you obj c iv s nd n id n i y

sou c s you will n d o im l m n you s y.

Whatever the situation the branch needs a clearstrategy i it is to success ully infuence the proposedprocurement exercise. The checklist below will help

the branch to develop a strategy in response to theparticular threat it aces, and one that is tailored tomeet and react to the local actors and circumstances.

Branch checklist or action in responseto a proposed procurement exercise

Contact the regional o fce The region should be contacted and your regionalorganiser (RO) should become directly involved, helpingyou to develop and implement a branch strategy.

All major procurement exercises are likely to have apotential strategic impact on the wider union. A plannedshared services project is likely to have implications

or UNISON members employed elsewhere in theregion or even wider. For example the NHS XansaShared Services project has just three operationalcentres in England that cover the whole country.

Checklist

Con c ion l o c bou ll ocu m n x cis s Involv you rO w ocu m n x cis

is si ni c n nd wo k wi m o: ss ss o n i l im c on o ublic u o i i s ss ss s ic im o nc o ocu m n x cis W ocu m n x cis c oss s ion l

bound i s, d cision will n d o b m d onw ic ion will l d co-o din d s ons .

Meet to plan the branch strategy The regional o cer and branch should arrange an earlymeeting involving all the relevant union stewards andbranch o cers to plan and implement a branch strategy.In some cases eg a shared services project, it will benecessary to consider how to involve all the UNISONbranches likely to be directly a ected. A decision will alsoneed to be taken about the involvement o any otherunions a ected. The branchs strategy will be in ormedby a detailed consideration o the issues set out below.

Checklist

Involv ll l v n s w ds nd b nc o c s I o os l di c ly c s mo n on

UNISON b nc nsu ll c d b nc swo k o o d v lo s y.

Involv o l v n unions ensu you ion l o nis is invi d o m in


18/7618


Identi y the issues The meeting should identi y and make an initialassessment o the main issues, considering

them under the ollowing headings.

Proposed procurementEven at the preliminary planning stage it is likely thatinternal or external reports have been written orelected members or strategic boards and the branchshould ensure that it obtains copies. The branchshould also identi y how the key decisions will betaken and the timescales envisaged. And althoughthe scope o many projects change during theprocurement process you should try to identi y whichgroups are likely to be directly and indirectly a ected.

Checklist Id n i y sco o ocu m n x cis Id n i y nd ob in co i s o ll in n l o s Id n i y nd ob in co i s o ll x n l

( consul n s) o s Id n i y w ic m mb s lik ly o b

di c ly nd indi c ly c d Id n i y d cision m kin oc ss s nd im sc l s

What are the key drivers? The branch strategy must be in ormed by a clearassessment and understanding o what is driving theproposed procurement. This analysis should determinethe nature o the branch campaign and will clearlyinfuence the e ectiveness o any engagement.

The key drivers in any service review ormajor procurement exercise are likely to beone or a combination o the ollowing: e ciency savings/budget cuts

ideological/political dogma poor per orming services poor external assessment (eg CPA; DH; O sted) national policy directive (eg PCT commissioner/

provider split) access to capital investment regeneration/create local jobs chie executive/senior manager(s)

Checklist

M k n ss ssm n o k y d iv s b ind ocu m n x cis nd nsu b nc s y is s d by s

Membership A well organised union presence with high membershipdensity and good steward cover will be important

in helping the branch to achieve its objectives. Thebranch should carry out a mapping exercise o unionmembership and organisation in the a ected areas.

This need not be comprehensive at this stage butshould aim to address any immediate shortcomingsand ensure that there is a union presence romthe outset. It should be seen as the rst importantstep in developing a comprehensive recruitmentand organising campaign in the a ected areas.

Checklist

C y ou m in x cis o UNISON m mb s i ndd nsi y in s di c ly nd indi c ly c d includins w d numb s, loc ion nd occu ion l cov

ensu is union s nc in s c d Id n i y o unions m mb s i nd o nis ion pl n d v lo m n o c ui m n

nd o nisin c m i n

Branch priorities The implications o a major procurement exercise,particularly where it could lead to a StrategicService Delivery Partnership (SSDP) or outsourcedshared services will be ar reaching and willthere ore need to be prioritised by the branch. Tobe e ective the branch will need to identi y otherpriorities (eg pay and grading reviews; memberrepresentation) and how the proposed procurementexercise is likely to impact or infuence these.

Checklist

ex min b nc s o io i i s nd ow s will b sou c d nd m n d

du in ocu m n x cis . Consid o n i l su o iv c ion m mb s

mi k includin indus i l c ion ll s s.t is will b icul ly l v n w union

sn b n llow d o n in oc ss.

Resources and training The branch will need to make an assessment o the

in ormation, skills, training and support it will needto infuence the proposals and how these can beaccessed. The list is likely to include:

guidance and advice UNISON materials availablerom UNISON head o ce or national service groups


19/7619


company in ormation company pro les;in ormation on potential bidders and managementconsultants available rom the Private Companies

Unit or the Bargaining Support Unit at head o ce external expertise UNISON endorsed andrecommended external advisers who can be usedto provide an analysis o the potential impact o anyproposals; longer term support; or act as an employer

unded critical riend 1 working directly to the unionlocally (contact your RO or urther in ormation).

experience/knowledge o similar issues arisingelsewhere (eg neighbouring branches)

nance including possible sources outside thebranch eg regional pool; General Political Fund (GPF)

paid release or branch o cers including back ll andregional support

branch and UNISON knowledge and expertise available union training modules and packages audit o branch o cers and stewards who have

undertaken training an assessment o training needs identi y priorities or training (including basic and

advanced) identi y timescales and how the training will be delivered.

Checklist

audi nd ss ss skills, inin nd su o b ncwill qui nd ow s c n b cc ss d o n bl

b nc o succ ss ully infu nc o os ls.

CommunicationsMembers must be at the heart o any campaignparticularly the development o a serviceimprovement plan or in-house bid. They shouldbe involved in all the key decisions a ecting their

jobs, and the action planned by the branch, and

kept regularly in ormed. Good communicationswill be essential to achieving these aims.

The branch should draw up a communicationsplan, considering how best to use the variety o communication tools available, including a branchnewsletter; web site, members meetings; and thecouncil and local media. It should ensure the planaddresses the needs o di erent target audiencesincluding stewards, members, managers, localpoliticians, user organisations, and community groups

1 A critical friend is an external, independent body thatreviews the process. A small number of employershave funded or part funded external support (eg APSEbest value consultancy) to assist the branch to engagemore effectively in the procurement process

UNISON should ensure that the process remainsa key part o a political decision-making process.

There is always a danger that the procurement

process will simply become a technical processwith local politicians in key governance roles(eg as councillors or non executive memberso health bodies) marginalised until a decisionis required on whether to award a contract.

Checklist

D w u b nc communic ions l nid n i yin k y udi nc s.

Branch strategyOnce the issues set out in these checklists havebeen ully considered the branch should be inposition to agree its key aims and objectivesand the strategy or achieving these.

Consider whether a short intensive workshop acilitatedby the region or an external organisation might assist.Some branches have held very success ul workshopsto explore a report and proposals in more detail aspart o the process o developing the branch strategy.It is also important to bear in mind that a majorprocurement exercise will usually continue or manymonths and in some cases years. In order to bee ective the branch strategy will need to makesigni cant demands on branch and regional time andresources and will have to be managed e ectively.

This can best be done by designating a seniorbranch o cer / steward with overall responsibility.


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C: Employment issues

Introduction

At the start o any service review or procurementexercise the Branch will need to look closely atthe potential impact on members terms andconditions and employment. And as we shall see,the employment implications will also need to be re-visited at each stage o the procurement process.


1 Why should we get involved? B nc s mus y oinfu nc m loym n mod l nd m loym nissu s li s ossibl s in o d os cu b s ossibl ou com o m mb s.

2 What will happen i we dont? I s vic is ou sou c d ublic u o i y is lik ly o o o ovid b sic

minimum tUpe o c ion nd minimum nsionn m n s o ns d s nd n w s s.

Unl ss i is s ci d s n o ion o o n i l bidd s n ly s , onc o m l ocu m n oc ss

b ins i will b oo l o s cu b o c ion ou commi m n o m loy s condm n o tUpe lus

n m n , wi ood nsion sc m o n w s s.

t v b n ins nc s w union b nc s vd l y d discussin m loym n issu s, inins d o u ll i n y in o c m i nin insou sou cin only o discov l y v miss d

o o uni y o infu nc m loym n mod l.3 What can happen i we do? B nc s will b i

s on s nd mos infu n i l in li s s o oc ss. M mb s nd non m mb s mo lik ly

o su o union c m i n ocus s s on ly ono c in y, condi ions nd nsions. a ood m loym nck will b n m mb s nd n nc c dibili y

o union m kin c ui m n nd n ion o

m mb s si . I will lso m k i mo di cul o nx n l ovid o m k s vin s x ns o

wo k o c nd could lso m k d cision o in s vic sin- ous wi s vic im ov m n l n mo lik ly.

4 How can we be involved? ensu m loym nissu s c n l u o b nc s y. Us

in o m ion in is uid o d w u im lin ndc cklis o m k su b nc in v n s

i oin s. Lobby s nio m n s, councillo s nd nonx cu iv bo d m mb s bou m loym n issu s.

t union s w l o in o m ion nd knowl do m loym n issu s w ic s ould b us d.

5 What do we need to do? M k su b ncm s n ly s o l n i s s y nd m loym n issu s i on nd .

As the delivery o public services has becomeincreasingly ragmented the di erent types o arrangements or employment relationships

have become more complex.

UNISON has success ully campaigned to strengthenthe protection o members by negotiatingagreements and changes in the law. These havebeen designed both to protect members andensure private companies do not win contractsby cutting pay and conditions o employment.

The UNISON Organising Guide to Trans ers o Employment 2008 is the one stop shop orthe in ormation and advice a branch will needwhen dealing with trans ers, rom the start tothe nish. It also re ers to possible alternatives totrans er. As well as giving general in ormation andorganising advice, the guide provides access tothe speci c pieces o advice and policy producedby UNISON or each o the unions main sectors.www.unison.org.uk/acrobat/PCU_Organising_guide.pd It is vital that the branch ully understand the variousmodels and protections available at the servicereview and pre-procurement stages as these willbe central to the strategy the branch adopts.

For example i the services under review are highlylabour intensive, the costs and savings pro le islikely to be very di erent to a project that proposessharing high value capital assets across a numbero public authorities. The costs o the alternativeemployment models will clearly a ect the nancial / business case or pursuing a particular option. Forexample i all trans erred sta and new starters aregiven the option to join a comparable nal salarypension scheme that is likely to strengthen the

nancial case or an improved in-house option.

The main employment options that a branchshould be aware o are briefy as ollows:

Trans er o Undertakings (Protection oEmployment) Regulations 2006 (TUPE)

TUPE sa eguards employees rights whenthe business in which they are employedchanges hands. The TUPE Regulations providea range o legal sa eguards including: terms and conditions o employment previous employment rights protection against dismissal or any reason

connected with the trans er accrued pension rights collective agreements union recognition in ormation and consultation rights.


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TUPE PlusMany UNISON branches have built on the basicprotections provided or by TUPE, enhancing and

extending these rights. Examples would be toautomatically apply TUPE terms and conditionsto all new starters or to automatically apply anynationally agreed pay increases (eg NHS Agenda

or Change) or the whole length o the contract.

Codes o practice on work orce mattersNew starters taken on a ter a trans er are not coveredby TUPE and are o ten employed on worse payand conditions. This creates a two-tier work orce.

As a result o UNISON pressure a number o codesand protocols have been introduced to ensure thatnew starters receive air and reasonable termsand conditions which are overall no less avourablethan those o trans erred employees. These codesand protocols cover many sta in the NHS, localgovernment, education, police, and probationservices. Although there are di erences in contentand scope they also cover all parts o the GreatBritain, but not Northern Ireland. Some servicesare currently not covered by the codes (eg highereducation and FE colleges in England) and UNISON iscontinuing to campaign or these to be covered. Theunion is also pressing or better monitoring o howthe codes and protocols are working in practice.

PensionsLocal government employees outsourced under

TUPE are covered by the Governments Fair Deal onPublic Service Pensions. In the LGPS the contractorhas to either conclude an Admission Agreement sothat trans erring sta retain the right to remain in theLGPS while undertaking work on the outsourcedservice, or to put trans erred sta in a pension schemecerti ed as broadly comparable by the Governments

Actuary Department (GAD). Other public serviceemployees outsourced to the private sector cannot

stay in their scheme unless they are seconded.In this case they have the right to join a broadlycomparable pension scheme certi ed by GAD.

Anyone who is trans erred into a broadly comparablepension scheme should also have the option totrans er their past service in their public servicescheme to their new scheme on a bulk trans erbasis. That means they should get day or dayservice or equivalent value in their new schemei they decide to trans er their past service.

New starters must also be o ered an opportunityto join a pension scheme, and these will range roma good quality nal salary scheme, to a de nedcontribution scheme with a matching employercontribution o up to 6%. It also possible or

admission agreements in the LGPS to be open tonew employers taken on by the contractor to dowork related to the outsourced service. Further

in ormation on pensions on trans er is available romUNISONs website at www.unison.org.uk/pensions

Alternatives to trans erEven where a service is outsourced there arealternatives to trans er and these include:

a) Secondment agreement This involves sta opting not to trans er under TUPEbut to remain instead with their existing employer andto be seconded to the new service provider to carryout work on the outsourced contract. In the case o Liverpool Direct, a joint venture company (JVC) ormedbetween Liverpool City Council and BT; new sta are recruited by the city council and then secondedto the JVC. However, they remain city councilemployees. Some public authorities have argued thatsecondment is unlaw ul and that TUPE automaticallyapplies. However most observers and UNISONs legaladvisers agree that secondment, where employeesare given a clear option whether or not to trans erunder TUPE, is per ectly legal. Secondment clearlyhas a number o strong advantages over TUPE.

b) Retention o employment (RoE) The RoE model applies to NHS PFI schemes inEngland. Its scope is also limited to ancillary sta . It isa secondment type arrangement or catering, cleaning,portering, laundry, and security sta and employeesmust be given the option whether or not to trans erunder TUPE. However RoE does not cover supervisorsand estates sta who normally trans er under TUPE.

(Note: These paragraphs refect the currentunderstanding o secondment and retention o employment (as at Oct 2008). However the law is

requently changing around this subject, so pleasecheck the UNISON website or the latest in ormation.)


Us UNISON O nisin guid o t ns so em loym n 2008 o id n i y di n

m loym n mod ls nd o c ions v il bl . ensu you ully und s nd k y s s in

ocu m n oc ss w m loym n mod l c n

b infu nc d nd s o b d o ( OJeU no ic ) W tUpe mod l is us d nsu l v n codo c ic on wo k o c m s is lso im l m n d.

r is b nc s d m loym n mod l wi m loy li s ossibl s in oc ss.


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t is is oin w ic conc ssion on o x m ls condm n is mos lik ly. Id lly you s ould y o s cu

commi m n o you d m loym n mod l in

s vic ns o m ion nd ocu m n m no u o i ys co o ocu m n olicy. ass ss qu li y im c o v ious

m loym n mod ls on o os d ocu m nx cis o ss ss w ny dis dv n d

ou s lik ly o b dv s ly c d


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D: The public sector equality dutyand equality impact assessment

All public bodies are required by law to promoteequality o opportunity and eliminate discrimination orservice users and sta , rather than wait or individualsto complain. This gives UNISON negotiators power ultools to infuence the procurement process and to

ght privatisation and cuts in services. UNISON hasproduced a comprehensive Guide Public SectorEquality Duties as part o the unions strategy to makesure the duties stick. It can be downloaded at:www.unison.org.uk/ le/16965_Equality_Guidance.pd There are speci c gender duties, but the duties apply

as much to race and disability. Public authorities arerequired to have an equality scheme(s) and shouldconsult and involve a ected groups about these.


W y s ould w involv d? public bodi s qui dby l w o nsu i ocu m n olici s nd c ic scom ly wi i qu li y du i s. t is s on

vid nc ocu m n oc ss nd iv is ionund min s qu li y in wo k l c . t ublic s c o

qu li y du i s iv UNISON b nc s ow ul ool o

d m in c s o iv is ion nd cu s. W will n i w don ? r s c su s s

wi ou ssu om UNISON ublic u o i i s willi no n iv qu li y im lic ions o ocu m n

nd ou sou cin nd will no c y ou qu li y im css ssm n s o consul s nd d unions. al dy

dis dv n d ou s o m mb s lik ly o los ou . W c n n i w do? W will b mo succ ss ul

in inin s vic s in- ous nd o c in im o n ins w v m d in cklin disc imin ion

nd nsu in qu li y o o o uni y nd i n ssin wo k l c . In No n I l nd in icul

UNISON s us d qu li y l ws o win s i so si ni c n vic o i s o qu li y.

how c n w b involv d? ensu qu li y is ion nd nd is c n l l nk o b nc ss y. Us ublic s c o qu li y du i s o quiconsul ion wi s nd union nd o qui n

qu li y im c ss ssm n o b c i d ou b innin o oc ss. I ull ocu m n x cisis c i d ou u eIa s ould b c i d ou b o

con c is si n d. h v im lin nd c ckliso m k su you in v n i oin s in

oc ss. Lobby s nio m n s, councillo s nd non

x cu iv bo d m mb s bou qu li y issu snd build lli nc s wi qu li y ou s. t union s w l o in o m ion nd knowl d o qu li y

issu s (s www.unison.o .uk o u d ils)

W do w n d o do? M k su b ncm s n ly s o l n i s s y nd

qu li y issu s i on nd .

Equality impact assessmentEquality impact assessments (EIAs) play a key role inthe implementation o the duties and they are a legalrequirement or authorities covered by speci c duties.

They aim to: ensure no groups are disadvantaged on equality

grounds by an authoritys decisions or activities indicate where public authorities can promote

equality o opportunity.

Where a public authority looks at a new proposalor an existing policy it has to consider whetherit would increase inequalities between menand women, di erent community groups, or ordisabled people in the work orce or the widercommunity. To make a judgement authorities areexpected to look at a lot o di erent in ormation.

Examples include gathering and analysingstatistics, consulting sta and looking at costs.I authorities nd that their proposal could makethings worse or some groups they have to nd

a way to remove or minimise the impact.

In act the duties go much urther in requiring theemployer not just to remove any negative impacts,but to act to enhance and promote equality.

When assessments identi y negative impact or amissed opportunity to promote equal opportunities,the public authority must have due regard tothe need to modi y the policy or practice.

The duties support UNISONs work in a number o ways. For example public authorities must ensurethat their procurement policies and practicescomply with the equality duties. Outsourcingand cuts can and do undermine equality in theworkplace and communities. That is one reasonwhy branches must put pressure on authoritiesto develop approaches to procurement which: avour the option that most ully complies with the

requirements o the equality duties, speci cally theoption to retain services in-house

ask contractors questions about its equality policiesand practices

include equality criteria in options appraisal andtender evaluation

make it clear that the contractor is responsible ormeeting the general disability and gender duties inthe delivery o services which are outsourced.


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Carrying out an equality impact assessmentWhere a public authority is proposing to carry outa services review or a procurement exercise the

branch should ensure that the authority carriesout an equality impact assessment (EIA). Althoughit should be emphasised that it is the employersresponsibility to carry out the EIA it is very importantthat the branch is ully consulted and involved in theexercise. The branch may also wish to press or thescope o the EIA to be extended to cover age; sexualorientation; gender reassignment and religion/belie .

Preliminary and ull assessment A preliminary screening will be use ul to decidei a ull impact assessment is needed. Theauthority should look at the aims o the proposaland any evidence that would point to a potentialimpact on equality. The screening should look atwhether the proposal is a major one in terms o scale or signi cance; or i minor whether it is stilllikely to have a major impact on equalities.I the results o the preliminary screen indicatea likely negative impact on equalities a ullEIA should ollow. This will involve: analysing available data and research consulting relevant groups assessing the potential impact considering measures which might mitigate any

adverse impact and / or alternative policies arriving at a decision on the way orward publishing the results o the impact assessment arranging the uture monitoring o the actual impact

o the policy.

An authority may nd that urther researchor consultation is necessary especially i it islikely to lead to a di erent conclusion.

Case study Equality duties and equal pay a council is l nnin commissionin x cis o iv is bi o soci l c di c o . t l son b ind

is is o void lyin sin l s us qu l y m no m ny low id wom n wo k s nd m y b b c o

i s u o y qu li y du y. an eIa would i li is.

Case study Equality duties and e fciency savingst olic u o i y w n s o x numb o communi ysu o o c s in oo s o o s v mon y.

a si ni c n o o ion o m loy s om bl ck communi i s. t is o os l would v d im n l con loc l conomy, nd m y v n iv c on

bl ck s vic us s s ci l cks lik ly o inc s . tublic u o i y m y b b c in r c equ li y Du y.

Case study Equality duties andcontracting out shared services

You pCt s ood olici s on qu li y nd m loys numbo dis bl d s . t y l n o mov i y oll, It nd hrs vic s o s d s vic s n s i b s d 30 mil s w y.t is will v m jo n iv c on dis bl d s b c usloc l ns o s vic s n cc ssibl o n w si nd

is limi d kin o dis bl d o l n w si , ndm ny o dis bl d s isk c n m n ddi ion l

v llin im qui d o -loc . t ublic u o i ym y b in b c o i s u o y Dis bili y equ li y Du y.

NOTE: The new Equality and Human RightsCommission can issue an en orcementnotice i an authority ails to complywith its statutory equality duties


nsu b nc o c s nd s w ds b i d on public S c o equ li y Du i s

(s www.unison.o .uk/ l /16965_equ li y_guid nc . d ) nsu ublic u o i y s qu li y

sc m s in l c nd y wo kin c iv ly( moni o in n m n s in l c )

sk ublic u o i y o c y ou limin ysc n nd i o i ull qu li y im c

ss ssm n ocu m n s nsu b nc is ully involv d in oc ss

nd s ks o infu nc c i i us d consul wi s , s vic us s, nd communi y

o nis ions nd build lli nc s nsu i ull ocu m n x cis o s d

qu li i s issu s dd ss d k y s sin oc ss includin in m in s wi con c o s

c y ou ull eIa b o con c is si n d.

The ollowing is a use ul extract rom the NJC localgovernment services handbook on a recommendedapproach to carrying out an equality impact assessment


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Extract Part 4 NJC or Local GovernmentServices (England & Wales)

Carrying out an Equality Impact AssessmentKey stages and questions

The EIA has three stages:

Stage 1 Scope o the assessment What are the main aims and objectives o the

proposal? How does the policy/proposed change t in with the

authoritys objectives? Which group/groups o employees are a ected by

this proposal?

Stage 2 Assessment o impact What in ormation on the likely impact o the

proposal is available rom the current data? What are the views o the key stakeholders? How is it likely to a ect the target equality groups? Is there any evidence that this proposal will have a

di erent impact on any o the target equality groups? In what way?

Stage 3 Decisions and recommendations Is there an adverse impact on any o the target

groups? I so, can the proposal be changed to remove the

impact? Can the negative consequences be counter

balanced by other measures? I not, are there alternative measures that would

achieve the objectives without an adverse impact? I not, can the proposed changes be justi ed on the

grounds that they are intended to promote equalityo opportunity?

I yes, or what reasons? Could the proposal lead to unlaw ul direct

discrimination? I yes, you must abandon it

straightaway and look or di erent ways o achievingyour policy: direct discrimination can never be

justi ed. Reject the proposal. Could the proposal lead to unlaw ul indirect

discrimination? I yes, you should look at di erentways o achieving your aims. I you decide thepotential or indirectly discriminating against somegroups is justi able, you should make sure yourreasons have nothing to do with race, gender,disability, sexual orientation, religion or belie , age ormain occupational group/part t ime sta . You wouldbe well advised to seek legal advice on the question

o justi ability. This is a di cult area o law. Agree and publish/ ormally record decision on

proposal/policy with justi cation (i required),including the relative weight given to the evidenceand the reasons or the decision.

Make arrangements or jointly monitoring andevaluating the policy and its impact as part o regular audits.


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In this section we will cover: A: service reviews and improvement plansB: options appraisal, in-housebids and business cases.

A: Service reviews andimprovement plans

Introduction A undamental part o any commissioning orprocurement decision is the rationale which underpinsthat decision. Prior to the commencement o anyprocurement exercise there should be an explanationo the reasoning which led to the decision. Goodpractice and best value would dictate that thedecision to procure is based on a ull review o service/activity and an options appraisal. This isintended to orm part o the challenge processby which existing provision is subjected to a rootand branch review to determine (a) the need orthe service; (b) the best method o providing theservice and; (c) who should provide the service.

The act that

Documents

Contract Evalution