I have flagged this up with the Public Procurement Review Service. I don’t expect much of a result. The last time I complained, about a council tender for 18 months of leadership development which required 58 compliance requirements, they sent my complaint to the council then sent me back the council’s response which was ‘we consider this is proportionate’ (I’ve shared info on that below).
Well, maybe I’ll radicalise one junior Civil Servant in the Cabinet Office…
I have also flagged this with the Crown Commercial SME Representative, though I have learned that while each rep I’ve met has been a good, genuine, and well-meaning small businessperson, they are on the Cabinet Office payroll, constrained by Cabinet Office terms and conditions, and effectively have to work as a PR flack for government procurement rather than a radical advocate for SMEs winning government work.
The £8m tender
The tender from DHSC was for improvement work in adult social care, the sort of work my SME consultancy does, and an SME Social Enterprise I lead does.
It was published as a single Lot of up to £8m, on Maundy Thursday, with a three-week turnaround (and close of clarifications within school Easter Holidays).
To me, this appears to be actively hostile to SMEs:
- it’s impossible for us to bid or to form a consortium in the timeframe
- it could easily have been broken down into a panel or small accessible Lots
- it will have the effect of draining most of the social care support work out of the market (why would councils procure when they can get free DHSC support?) – and therefore looks likely to be a very detrimental case of market shaping!
In fact, we could easily supply such a contract (if could bid and win), but of course we have no chance of winning due to investment in bid, and size of our turnover.
Clarifications
I asked for clarifications as well as complaining – whether there was a Prior Information Notice, why the tender wasn’t broken into smaller Lots, and whether a sufficient extension to allow SMEs to form consortia could be given.
It turns out there was a PIN – on 3 October 2023. My full-time bid manager and part-time support person had missed this (how many SMEs would invest in >1 FTE on public bidding), partly because we were smarting from losing out to a big consultancy on provision of nearly £1m of support to adult social care commissioning – a single tender which risks killing off our Social Enterprise provision of the Cabinet Office Commissioning Academy – and which similarly disappointed a number of small organisations which, like ours, know a lot about adult social care and have been deeply involved in the sector.
They sought to justify not breaking £8m of spend in less than a year into smaller lots because of the need for ‘joined-up support’ (but suggested a consortium could be considered – which of course makes clear that ‘joining up’ can certainly be achieved across multiple provider organisations).
There was also no constructive response to the request for a reasonable extension to allow for SMEs to enter into consortia – the support is urgent. I’m sure it is, and I’m also sure it’s likely that proceedings during the procurement – say, at the evaluation stage – will be delayed several weeks, as they usually are, so a small extension would have been reasonable.
Financial criteria
In response to my query as to what turnover or other financial criteria would be applied to asses whether an SME bidder could be considered, I was pointed, in the 288 pages of tender documentation to ‘section 5:economic and financial standing’. Unfortunately, this explicitly does *not* provide any clear criteria or calculations for considering financial standing of bidders for a tender of this size. It just says ‘an assessment will be made’ and ‘Potential Providers’ will be excluded if various risks, including ‘inability to cope with the contract size’, are considered ‘high risk’. It’s a pass/fail criteria, entirely subjective.
This is particularly unhelpful for SMEs considering bidding, as it takes away the possibility of confident self-analysis and creates the possibility of investing tens of thousands of pounds in bidding, to be excluded on this vague and subjective pass/fail criteria. It’s actually worse than not including any information, as it gives no basis on which to consider whether a prospective bidder is suitable to bid or not.
Public information on this tender
Link to the contracts advance: https://app.contractsadvance.co.uk/release/4440624/1/4480
Contracts finder: https://www.contractsfinder.service.gov.uk/notice/64817ce8-ab4a-4e08-b31e-e4d8bd46d5b6?origin=SearchResults&p=1
Published on 28 of March [Maundy Thursday – school holidays]
Department of Health and Social Care (DHSC), Continuous ASC and PH Improvement for LAs and Practitioners
Clarification Deadline: 09/04/24 @ 12pm
Submission deadline: 19/04/24 @ 5pm
Budget: £7,972,950.00
Duration: Nine months possibility to extend up to six months
Evaluation Criteria: Quality 90%, price 10% [I usually commend this kind of approach, but…]
Summary: Procurement of A comprehensive, evidence-based programme of support and improvement activity that helps local authorities and practitioners deliver adult social care and public health statutory duties and improve services so that everyone can access high quality care that enables choice, control and independence. The programme will identify the support needs of local authorities and social care practitioners and design and deliver support and improvement activity in response. This support should include the delivery of digital evidence-based best practice materials, practical tools, and training across the adult social care and public health systems that is tailored to a diverse range of national, regional and local needs.
Previous invitation to tender – council leadership work
129 pages
“Bidders are required to provide an overview of their organisation, a copy of their current organisational structure, reporting structure of local offices and the nominated personnel who would manage the Contract. All parent company, subsidiary and affiliate company relationships should be detailed. Please provide detail of any major structural changes to the organisation over the past five years. Details which must be provided include changes in ownership of the organisation, in senior executives, in geographical location etc. Please also provide detail of any anticipated future changes which may be pertinent to this tender.”
That’s one of 58 boxes to be filled for the bid (plus pricing schedule), of which 15-20 are substantive questions, in a document that’s 23 pages long before our content is added.
Compliance requirements include:
- modern slavery,
- carbon net zero AND decarbonisation,
- travel distance,
- type of fuel used in vehicle,
- Care Leaver Covenant,
- career opportunities for people with disabilities or disadvantaged people,
- Disability Confident scheme,
- Carer Friendly Employers scheme,
- Social Value,
- how often we train employees with the Modern Slavery Training Guidance provided by the Gangmaster and Labour Abuse Authority,
- DBS clearance (for management training?), and
- focus (not commitment?) to reduce use of single use plastics.
Obviously, we support all these initiatives/goals (though they’ve missed some – no mention of equality, diversity, and inclusion or other protected characteristics beyond disabilities? Nothing – in a training proposal – on neurodiversity? Nothing on volunteering?), but for 18 months of training with course focus and outcomes already defined, it feels… onerous?
This comes along, of course, with a nine-page data processing agreement, a 47-page contract including TUPE terms, 18 pages of bid guidance,
Oh – and the person delivering the training needs to have – or be working towards – ‘a masters’…
However, they have not specified a budget.
We would have been extremely well placed to deliver this training. however given that open training tenders (even onerous ones) regularly receive dozens of bids, unfortunately we were not be able to bid on that occasion.
I offer all of this less as a specific complaint and more as an illustration of the challenges we face on a daily basis attempting to provide good value services to the public sector.
chosen path 
Update:
A timely response from the Public Procurement Review Service. As usual, it is mostly along the lines of what the buyer has said. They are taking the publication of the PIN as the start of the process – which is reasonable to some degree. And I wish we’d seen it (of course, we couldn’t have challenged then – only put in a strongly-worded response to their request for information, and wait to see if and how they responded, by the time they issued the tender, by which time it would be too late).
I would say that:
I certainly don’t agree that letting in one Lot (as if anyone really has £1m/month of Adult Social Care capable support consultants sitting around anyway) is ‘a requirement of the service’ but this is very much a ‘Rwanda is a safe country’ situation – the buying authority is the arbiter of the ‘truth’ of its own statements…
And of course, government *can* use its own limitations (‘the allocated funding would expire in March 2025’) as a reason to rush things (though of course there was plenty of time to provide much longer response time, to small lots)… but it could also choose not to.
We will see if my meeting with them tomorrow engenders any change – hopefully I can get them to remove the grocer’s apostrophes from SMEs and VCSEs.
I personally consider it ‘revealing’ that the alternative to open procurement through the light touch regime was direct award.
Anyway, the point is that there are likely to be many more tenders issued in future which act both to exclude providers who don’t have a lot of spare resource to invest to buy market share (in the direct winning of the work), and destroy the existing market by therefore excluding smaller providers from other opportunities. That, it seems to me, might be suboptimal.
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The text they plan to publish:
Issue
PPRS was contacted by a supplier regarding the procurement for Continuous ASC and PH Improvement for LAs and Practitioners with the Department of Health and Social Care (DHSC)
The supplier had concerns over the way the procurement was run, particularly with regard to the lot structure, and whether the timeframe was realistic to allow participation from SME’s who may want to join together to form a consortium for bidding.
Outcome
Complaint not upheld
PPRS does not uphold the supplier’s complaint. Although the timescales for the procurement were
not optimum for bidders, the contracting authority ran the procurement in accordance with the LTR, and following the market testing, the contracting authority established a transition period which gave an extension of three months to enable them to complete the tender process.
PPRS recommends that for future time bound procurements, DHSC should act quickly with their
market engagement to widen the competition and to allow maximum time for bidders, including SME’s and VCSE’s that were considering collaborating to form a consortium.
PPRS also recommends that DHSC should aim for reasonable timeframes for future high value
procurements, and fully consider responses from bidders regarding achievable timescales.
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