Public procurement consultation – draft responses
This copy can be used to help you in your submissions to the public procurement consultation. Each point corresponds to the numbered section in the consultation.
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Section 1
To what extent do you agree or disagree that mandating large contracting authorities with spend over £100m p.a. to set 3-year targets for their procurement spend with SMEs and VCSEs and publish annual progress against these targets, would help increase spend with SMEs and VCSEs?
Agree
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- We support mandated targets and public reporting for VCSE spend, but think that the government could go further to ensure accountability of contracting authorities.
- For example, the targets could be additionally applied to all recipients of contracts in excess of £100m – 50% of government spend with SMEs is indirect, and we assume this is similar for VCSEs. Including large suppliers in these targets would therefore further support accountability on VCSE spend.
- We hope this reporting would highlight existing areas of progress, but also opportunities for improvement by signalling where opportunities lie.
- However, reporting must be accompanied by plans to support the sustained growth of VCSE and SME provision, through pre-commissioning collaboration, long-term contracting, reserved contracts, and joined-up support to increase supplier pipelines.
- Targets must also be accompanied by accountability, which will only be achieved if large contracting authorities are supported by a social value framework, co-designed with social enterprises and sector representatives.
Section 2
To what extent do you agree or disagree that extending the requirements of section 70 of the Act to publish information on (i) all payments made under public contracts and (ii) payments under notifiable below-threshold contracts, would help increase spend with SMEs and VCSEs?
Agree
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- We support greater transparency in the procurement process, to enable greater understanding and scrutiny of how services are procured, and we broadly support all transparency and reporting ambitions.
- However, without a data framework and methodology around VCSEs, and social enterprises in particular, this data may be less useful.
- Additionally, without mandates/repercussions, this move towards greater transparency may place an impossible burden on contracting authorities.
- Publishing information on spend, especially under below-threshold contracts, could create greater visibility for VCSEs as tier 2 suppliers in bigger contracts, as well as allowing incoming VCSE suppliers to better understand opportunities to work with the public sector.
- This could support the government in their goal of increasing opportunities for VCSE organisations which are well-placed to deliver quality services and social value within their communities, but can struggle with access and visibility.
- External stakeholders, through public scrutiny and additional analysis, would be able to explore – for example – geographic, leadership demographic, business model and other data that informs pipeline and representation in supply chains.
Section 3
To what extent do you agree or disagree that requiring contracting authorities to exclude suppliers from bidding on major contracts (+£5m per annum) if they cannot demonstrate prompt payment of invoices to their supply chains (within an average of 60 days) would help improve late payment by suppliers to the public sector?
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- A 60-day requirement should be the minimum, but we would like to see it set at 30 days.
- This reflects what the Fair Payment Code recommends for SMEs.
- This is especially important for social enterprises where healthy cash flow is crucial, as late payments are often a barrier to entry.
- We also would suggest altering the wording of this recommendation to a ‘maximum of 30 days’ rather than an ‘average of 60 days’, to reflect the importance of prompt payment.
Section 4
To what extent do you agree or disagree that there should be flexibility for contracts for people focused services to be awarded without competition?
Agree
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- Legacy procurement frameworks and commissioning approaches were not designed for and often fail to deliver cost-effective and quality service provision.
- VCSEs with the capability to deliver quality services are often marginalised from contracts due to excess competition and ineffective social value application.
- New legislation must give absolute clarity and guidance must recognise the challenges for commissioners to adapt to less rigid approaches to identifying and retaining the best service providers.
- This alone is not enough – a permissive framework is necessary, but additionally more thought needs to go into ensuring this framework is used in appropriate circumstances.
- External regulation should also be mandated to ensure there is not an ongoing cycle of poor quality provision.
- This is especially important for services which support the most vulnerable in society.
Section 5
Are there other services delivered to vulnerable citizens (beyond adult and children’s social care) that warrant procurement processes not permitted in the Procurement Act 2023? Please include i) the CPV code where possible and description of the services; ii) the nature of the problem faced; iii) the optimal policy solution(s). [NB 2000 character limit]
- Education and training services, health and social care services, and employment support contracts should also be considered.
Section 6
Do you have any examples where people-focused services have been procured well? Do you have any suggestions for changes to the processes available under the Procurement Act or guidance that could improve procurement of these services? [NB 2000 character limit]
- Clarity is needed in terms of what is meant by ‘procured well’ – does social value take precedence over cost?
- Where we have seen cost-effective, quality services delivered by VCSE organisations, this has come about because of:
- Partnership and collaboration
- Co-creation
- Pre-commissioning and capacity building
- Bravery on behalf of the contracting authority
- However, these examples are the exception, rather than the rule.
- There must be top-down encouragement and validation to ensure social value is embedded into the procurement process, supported by appropriate local infrastructure – for example Regional Care Cooperatives.
- Regional care cooperatives connect suppliers to local authorities and suppliers, and there must be an embedded commitment to lining these actors up to ensure partnerships are delivered with ambition, commitment, and intention.
Section 7
To what extent do you agree or disagree that contracting authorities should be required to undertake a public interest test and publish it when making sourcing decisions?
Agree
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- The extent to which we support this depends on what the test looks like – there is a lack of clarity on exactly what a ‘public interest test’ entails.
- Existing public interest tests are often superficial and do not inspire the kind of changes needed in procurement processes to deliver social value.
- For example, focussing on just KPIs or just using the TOMs framework does not adequately address where social value is needed in a given place.
- We would support the mandating of public interest tests where contracting authorities account for the social value delivered by their decisions and across the contract delivery lifecycle.
- However, measurement and process will determine whether tests are meaningful, whether or not they have unintended consequences, and whether they complement other policy (e.g. social value approaches and flexible contracting).
Section 8
To what extent do you agree or disagree that requiring authorities to set an award criteria which relates to the quality of the supplier’s contribution to jobs, opportunities or skills for all public contracts over £5m and with a minimum evaluation weighting of 10%, will help to deliver social value that supports economic growth?
Agree
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- We agree that jobs, opportunities, and skills can be an important part of social value – however, they are a narrow interpretation of it, and do not reflect the depth and spectrum of social value potential.
- Job creation cannot be seen as just a tick-box exercise – thought must go into the quality of jobs delivered, how long they last, and the benefits they deliver.
- 10% weighting in isolation of wider support and process around social value – particularly with all measurement upfront at contracting stage, not in delivery, won’t necessarily deliver desired results.
- We support the minimum weighting of 10% to social value award criteria, however on its own, and with the requirement to determine only one area where social value will be tracked, doesn’t provide sufficient certainty that social value will be delivered.
- There must be care taken to acknowledge the embedded social value that social enterprises deliver – for example, social enterprises which employ those farthest from the job market as part of their social mission may be incorrectly seen as delivering less social value than larger for-profit providers that deliver short apprenticeship schemes.
- Therefore, it is important that any framework accounts for embedded social value, and that this is tracked by the end of every contract to ensure it has been delivered.
- One way this could be supported is through introducing mandatory social value audits every three years for public bodies and large businesses.
Section 9
To what extent do you agree or disagree that, where authorities have set social value award criteria relating to jobs or skills, mandating that they also set at least one KPI on social value delivery, and subsequently report performance against a social value KPI (published in the contract performance notice), will support transparency of progress against social value commitments?
Agree
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- While the mandating of at least one social value award criteria relating to jobs and skills, and one KPI on social value delivery, could support transparency of progress against social value commitments – it is a minimum standard first step.
- KPIs for social value and limiting this to jobs and skills will not necessarily deliver optimal results.
- Rather, a combination of holistic measurement and support to improve awareness and practice is needed to ensure social value is embedded in delivery.
- Any criteria developed must be inclusive of the embedded social value delivered by social enterprises, and authorities must see social value as something which can be integrated into service delivery rather than added on as an afterthought.
- It is important that there is accountability for organisations failing to deliver on social value criteria, to ensure they accurately reflect social value delivery by VCSE organisations, and encourage greater transparency and accountability in the procurement process.
- This could be supported by the appointment of an accountable officer for social value in every public body, a league table of social value implementation across public bodies, or requiring all large businesses to report on their social value policy in their annual reports and accounts.
Section 10
To what extent do you agree or disagree that requiring contracting authorities to use standard social value criteria and metrics selected from a streamlined list (to be co-designed with the public sector and suppliers) in their procurement of public contracts will help to deliver social value in a proportionate manner?
Agree
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- We agree that this will support delivery of social value in a proportionate manner, but only if these criteria take into account the integrated and embedded value created by social enterprises.
- This must also be accompanied by accountability and validation through reporting and monitoring of impact data.
Section 11
To what extent do you agree or disagree that contracting authorities should be permitted to define the geographical location of where social value will be delivered as described above? Do you have any suggestions for innovative ways of delivering social value including by creating more flexibility in the current requirements in the Act on relevance and proportionality?
If you wish to explain why you do or do not agree that the proposed measure reflects or delivers the policy intent described above, please do so here. [NB 2000 character limit]
- Innovation in social value comes from co-creation, partnership, and in diversity and quality of provision – not flexibility in geographic measures, which may allow gaming of ‘easier’ (and less impactful) social value delivery.
- Contracting authorities should work closely with communities before putting contracts out to tender, especially with hyper local services such as housing.
- This can ensure that the social value delivered is specific to the needs of the local community.
- Again, accountability is key – a common framework should be created to monitor and report on social value across the devolved nations, combined authorities, and local authorities.