National Commissioning And Contracting Conference (September 2014) Wake up to the Law by Léonie Cowen National Commissioning And Contracting Conference (September 2014) Wake up to the Law by Léonie Cowen © Léonie Cowen & Associates

PURPOSE OF PRESENTATION Update on social care procurement The impact of the 2014 Directives on Public Procurement and the Award of Concession Contracts and changes to the regime Identify other recent changes which impact on social care commissioning and contracting Helpful tips! © Léonie Cowen & Associates 1

CURRENT PUBLIC CONTRACTS REGULATIONS Social care and health procurement are anomalous These are Part B Procurements or may be concession contracts The full rigour of the Public Contracts Regs do not apply This means more freedom! © Léonie Cowen & Associates 2

CURRENT FLEXIBILITIES? Use of concession contracts Frameworks Dynamic purchasing Developing partnerships with social enterprise - is this realistic? © Léonie Cowen & Associates 3

PROPOSED CHANGES Two new Directives which will bring fundamental change New regulations will be required to implement the Directives. Consultation is due any minute The distinction between Parts A & B will disappear © Léonie Cowen & Associates 4

PROPOSED CHANGES - PROCUREMENT DIRECTIVE (1) Social care tenders above a threshold of €750,000 (about £610,000) will be subject to the regime An OJEU contract notice will be required for all procurements above that level The UK has a discretion to set a “light touch” regime © Léonie Cowen & Associates 5

PROPOSED CHANGES - PROCUREMENT DIRECTIVE (2) Reserved contracts for social enterprises Competitive procedure with negotiation Statutory exclusion for controlled companies Compulsory e-procurement © Léonie Cowen & Associates 6

PROPOSED CHANGES - PROCURMENT DIRECTIVE (3) Helping small and medium enterprises Self certification Turnover of not more than 3 times the contract value Direct payment to subcontractors © Léonie Cowen & Associates 7

PROPOSED CHANGES - PROCUREMENT DIRECTIVE (4) Reduction in timescales Variations © Léonie Cowen & Associates 8

THE CONCESSION DIRECTIVE (1) A concession is a contract where consideration includes the right to exploit the services Concessions will be brought within the public procurement regime for the first time The Directive applies to concessions with a value to the concessioner of €5,186,000 (about £4,000,000) © Léonie Cowen & Associates 9

THE CONCESSION DIRECTIVE (2) “Light touch” provisions for health and social care concessions We do not know what these will be! An OJEU notice is still required. © Léonie Cowen & Associates 10

RECENT CHANGES TO THE LAW Localism Act 2011 – community right to bid and community right to challenge Public Value (Social Enterprise) Act 2012 The Care Act 2014 and other legislation © Léonie Cowen & Associates 11

CARE ACT 2014 – THE GOVERNMENT AGENDA Adding to the duties on LAs, see S1 Care Act 2014 More personalisation No more money! © Léonie Cowen & Associates 12

THREATS AND CHALLENGES Cuts to local authority budgets Rigid centralised procurement processes Lack of joined up agendas Challenges – Abbeyfield © Léonie Cowen & Associates 13

AVOIDING PROBLEMS MY TIPS Prepare first and act afterwards! Allow enough time Public sector must get the evaluation process right and “road test” it Tenderers must respond to the ITT requirements © Léonie Cowen & Associates 14

© Léonie Cowen & Associates 15 Leonie Cowen & Associates 3a Loveridge Mews, London NW6 2DP Telephone: Fax: