Suffolk CC Procurement Guidance mf110315
Suffolk CC Procurement Guidance mf110315
1 Introduction
Suffolk County Council (SCC) is making major changes in the way the services it is
responsible for are delivered. Many services will no longer be delivered by staff
directly employed by Suffolk County Council but through contract arrangements of
various forms with a wider range of different service providers.
However the county council remains responsible for the quality of services and
ensuring they are provided safely. This may be as a result of legislation relating to the
specific service and/or the more general provisions of the Health and Safety at Work
etc. Act 1974 (HSWA).
Section 3 of HSWA imposes a duty to carry out our undertakings, so that “persons not
in our employment” i.e. our customers, clients, members of the public etc. are not
“exposed to risks to their health and safety “
It’s about what does reasonably practicable look like. Section 40 puts the onus on the
‘employer’ to prove that they did everything that was reasonably practicable or that is
wasn’t reasonably practicable to do anything else.
Some of this will be determined by what is the level of the risk (To our staff, clients,
customers etc.).
Some of this will be dependent on whether it is regarded as our undertaking. E.g. the
Health and Safety of staff in a food processing factory isn’t necessarily our
undertaking. Whereas it might be regarded as part of our undertaking to ensure the
quality and hygiene of the food that comes out of the factory if it is used in our schools
and care homes.
Similarly we would have a more direct responsibility for the safety of buses used to
provide transport to school than for the workshop operations to maintain those
vehicles.
But whilst the Health and Safety of the staff in the factory or workshop isn’t our primary
concern from a Health and Safety perspective, we still have a moral obligation to use
reputable suppliers and would want to avoid any bad publicity by association with a
disreputable supplier. This might be regarded more of a general business risk than a
Health and Safety risk necessarily.
Successfully managing SCC Health and Safety responsibilities for contracted out
services needs to take account of:
SCC has established a Contract Management Board. The Board provides strategic
co-ordination and control of both procurement and contract management across all
services. Among other things, its purpose is to:
Ensure appropriate and sufficient skill sets exist across the organisation to deliver
effective contract management on all major contracts
Collate and ensure common practice, processes and learning are applied in each
of the above areas and adherence to the principles of the Good Practice Guide.
Effectively managing Health and Safety in contracted out services should be a thread
running throughout the whole process – from initially considering the options for
delivering the service, through writing a contract and specifying the service and
performance measures, selecting the provider (often through a formal procurement
process) to managing and monitoring the contract on an ongoing basis.
It is very important, although sometimes overlooked, to think at the start of the process
about how the contract will be managed, and not leave this to once it has been
awarded or, worse still, once it has started.
Not all stages will always apply. For example, there may be no procurement process
if services are to be provided (e.g. by a wholly owned company) under the “Teckal”
exemption from EU procurement regulations, although Health and Safety
considerations are still relevant to the provision of those services. Where there is a
procurement, the various procedures available will affect how Health and Safety
matters can be addressed at different stages depending on relevance and
proportionality.
SCC’s policy is to employ only competent contractors to carry out work on our behalf.
We should only let contracts to those who demonstrate an understanding of and
commitment to health and safety, an ability to manage their work, and that of their
sub-contractors, safely and who are technically competent in their field.
1.2 Liability
Even though we may contract out works or services, we still retain some level of
responsibility for the actions of our contractors and can face civil claims or even
criminal prosecution if we do not select and manage our contractors effectively.
High value contracts do not always amount to high risk and low value contracts can
sometimes have high levels of risk.
There is a balance to be made between the value of a contract and the potential risk
to SCC, both in terms of health & safety risk and business risk generally. This will
influence the type of procurement process to use, and the level of health and safety
checks to carry out prior to award and the subsequent level of contract monitoring
required.
There is also a relationship between the level of risk in the contracted works or service
and the ‘closeness to our undertaking’, which will also affect the level of liability to
SCC.
More residual risk will apply to SCC where contractors provide a service, directly on
our behalf, or interact with members of the public etc., especially if children or
vulnerable adults are involved, than say where contractors work largely away from our
premises, in their own premises or elsewhere, where their interaction with our
processes won’t be quite such an issue.
The risk matrix below gives a guide as to the type of contract procedure that is most
suitable and the level of contract management required for various works or services
depending on the level of risk involved.
Where a contractor has multiple contracts .e.g. a bus company with more than one
bus route, which are regarded as separate contracts, then the combined value of
those contracts should be taken into account in assessing the control value.
Assess the risk in terms of the potential impact and the ‘closeness of the undertaking’.
This is done before any thought of financial value is considered in order to determine
the level of risk that is associated with the contract or service being procured.
Death / Disability 8
Major Injury / 4
RIDDOR
Minor Injury / 1st Aid 2
None / Trivial 1
Delivering a service to vulnerable groups e.g. children, vulnerable adults e.g. care 4
services.
Delivering a direct service to clients or MoPs e.g. highway maintenance. 3
Has contact with and/or impact on staff, clients, MoPs etc. e.g. building 2
maintenance.
No direct impact on staff/clients/MoPs e.g. Supply of goods. Provision of 1
administrative services.
Step 3
Determine the risk score. Multiply Step 1 x Step 2
8 16 24 32
Impact
4 8 12 16
2 4 6 8
1 2 3 4
Closeness of Undertaking
Put the risk proximity ranking against the value into Step 4 to determine the controls
necessary both to procure and to manage the contract. Note that the colours in this
part of the grid do not relate to risk, but to the level of control. Low value contracts
can still be high risk.
Step 4
Risk Proximity Matrix
High
Medium
Risk to SCC
Low
Trivial
<£10k £10k – SCC SCC Contract > EU
Contract threshold - EU Threshold
threshold Threshold
Value of Contract
Note that different EU thresholds apply to goods and services and works.
Step 5
Use the matrix to determine the actions required for procurement and contract
management
Grey
No special health and safety requirements.
Suitable for purchase order or any tender procedure.
Blue
Health and safety requirements to be clearly defined in contract or with
purchase order.
Checks undertaken to verify supplier is suitably competent and experienced
and manages health and safety effectively. e.g. SSIP accredited.
Check with SSIP annually to ensure contractor is still on the list.
Purple
Health and safety performance to be a substantial element of prequalification
process with SSIP an acceptable alternative.
Open procedure unlikely to be suitable for contracts above the EU threshold 1.
Health and safety requirements, tailored to the nature of service, to be clearly
set out in contract.
Details of H&S management system to be provided with tender and to be part
of quality evaluation.
Contract monitoring (unless one-off purchase order) to include headline
indicators such as AFR plus service specific indicators.
Brown
Health and safety performance to be a substantial element of prequalification
process with SSIP an acceptable alternative.
1
Note For procurement below the EU threshold the regulations recommend open tendering. Where
this is used specific and relevant evidence of H&S compliance will be required as a minimum standard
for participation.
Some procurement procedures allow for structured discussion during the procurement
process to help develop the solution from each bidder to delivering the service.
Whereas others allow for initial prequalification but not discussion.
2
Note For procurement below the EU threshold the regulations recommend open tendering. Where
this is used specific and relevant evidence of H&S compliance will be required as a minimum standard
for participation.
information from us about the condition of buildings, plant etc. when preparing their
own assessment.
what to wear;
about special equipment they need to use;
what to do in an emergency;
the sound of the alarm, and how and when to raise it.
You may take good practice for granted in-house, but don’t assume the same applies
to contractors. Even regular contractors may need reminding.
When contractors first start work at a new location they should be given an induction
to the premises. Share with them, details of known hazards and risks, our procedures
for dealing with them; Risk Assessments, Method Statements and Safe Systems of
Work etc.
Share with contractors, details of any new hazards as they become known.
Co-operate with contractors and work together in the best interests of health, safety
and wellbeing of both contracted and employed staff, and anyone else affected by our
operations, and expect them to do the same.
Some of these things, such as known hazards or any enforced procedures should be
included into the contract specification especially if there is likely to be a cost
implication to the contractor. Other, operational issues such as induction onto
premises should be dealt with by the client or premises manager after award.
2.7 Sub-Contractors
Problems can arise when there is further subcontracting unless there are good
arrangements between all parties. Set down rules about subcontracting in the contract
specification and find out from the contractor how they ensure that their contractors
are competent and how they monitor their performance.
Sub-contractors, especially those working on our premises, will also need to know
about our site rules. Those involved in service provision elsewhere e.g. on the
highway or in care services must also abide by our health and safety standards.
When work is contracted and sub-contracted again, there is more risk that important
safety information, standards, etc. may not be passed on, or understood, so it is very
important that the main contractor knows and understands their responsibilities to
ensure that their subcontractors work to the same rules and standards as we expect
of the main contractor and to supervise them accordingly.
Just as we monitor our main contractors, the work of sub-contractors also needs to be
monitored, although it is not always reasonable for us to monitor and audit sub-
contractors as well. This would normally be carried out by the main contractor and we
should ask to see evidence that it is done. But where the work of the contractor forms
a significant part of our undertaking however, we may want to monitor the sub-
contractor ourselves, in which case this needs to be written into the specification.
The Contract should make clear whether sub-contracting is permitted or not. If it is, the
Client must know exactly what work is being sub-contracted and to who, their role in
the work and have the right to refuse any sub-contractor who fails to satisfy
appropriate standards.
Details of sub-contractor performance, accident, incident rates etc. should be reported
to the contract monitoring meeting and included in the main contractor’s return.
As a rule, there should not be any subsequent sub-contracting by the sub-contractor
as this makes lines of communication and understanding, very tenuous. If, on
occasion this is necessary, perhaps due to the need for specialist expertise then this
should only be done with the express permission of the SCC contract manager who
must agree the safe system of work proposed.
is to be a quality element to the evaluation, then health and safety can form part of
that, either as a discrete element (where relevant and proportionate) or woven through
various aspects such as systems and processes, organisational culture, selection of
supply chain etc.
4 Appointment or Award
4.1 Award of Contract
At the award stage you can ask the contractor to verify the information that they
provided at the pre-qualification stage; both in terms of their general Health and Safety
competence, e.g. having a health and safety management system; and also their
specific proposals to deal with the requirements of the particular contract, e.g. risk
assessments, safe systems of work etc.
This information can be part of the selection criteria but it must be made clear to the
contractors at tendering stage how this will be judged.
Those involved in selecting a contractor must themselves be competent to judge or
else seek competent advice through their health & safety advisor.
5 Mobilisation
Mobilisation is often a very intensive period, with all parties working hard to make
sure the contract starts smoothly. For first time outsourcing, managing the TUPE
transfer will often be a dominant issue over this period. However, it is also the time at
which contract management arrangements and processes, and performance
measures will be finalised with the new provider. Future health and safety
management needs to be intrinsic to this process.
Effective contract management needs to start before the contract starts, for example
in agreeing with the contractor a formal contract operational manual and making sure
advance commissioning of services is robust and follows the agreed processes – start
as you mean to go on. This applies to health and safety issues too – they need to be
right on Day 1, not playing catch up.
There are a number of key considerations around how health and safety performance
will be monitored on an ongoing basis:
6 Contract Management
6.1 Contract monitoring meetings
General contract management arrangements are set out in the Suffolk County Council
– Contract Management Policy and Framework produced by Procurement. This
document sets out, amongst other things, the frequency of contract review meetings
based upon business risk and continuity.
Where there is a significant health & safety risk, regular health & safety review
meetings should also be carried out with the contractor to discuss health & safety
issues, their (health & safety) performance, and to agree actions. Health & Safety
review meetings should be at least quarterly although more often might be
appropriate, depending on the level of risk. Periodically, where the schedule allows, it
may be expedient to combine the health and safety review with the general contract
monitoring meeting. Notes of meetings and agreed actions should be recorded.
Actions should be SMART and carried out within the allotted time scales.
It may also be helpful for contractors to be invited to attend other existing health and
safety meetings such as a Building User Group meeting and this level of co-operation
should be encouraged, although it would not be appropriate however to expect
contractors to discuss their performance at an open forum with other parties present.
should reserve the right for SCC to refuse entry and request the re-provision of staff
who it considers represent a risk to the safety of its premises and/or individuals.
Taking action does not simply mean dismissal from a project. Sanctions (outside of
immediate actions) might include not awarding further works until the contractor can
demonstrate corrective actions have been taken.
Whenever action is taken against a failing contractor, they should be provided with
objective information explaining why actions have been taken. Any such sanctions
will need the involvement of the Procurement section.
6.5 Reporting
Term/Framework contractors should provide us with regular reports of their Health and
Safety performance. Precise details will be dependent on the type of contract, and
some reporting will be specific to the type of service being provided and agreed
through the contract monitoring meeting, for example:
Lagging Indicators:3
No. of fatal injuries
No. of Reportable Injuries (RIDDOR)
Accident Incidence Rate (AIR)/100,000 workers.
No. of Non-Reportable Injuries recorded.
No. and details of any enforcement actions or prosecutions.
Leading Indicators:
Staff training carried out
No. of Risk Assessments carried out / reviewed.
No. of safety inspections carried out
H&S audits
H&S climate survey
Progress of H&S action plans
7 Responsibilities
7.1 Contract Management Board
To own, co-ordinate and control the Strategic Procurement Pipeline
To oversee major contracts including early market engagement, procurement and
contract management.
Full terms of reference for the Contract Management Board can be obtained from the
Corporate Procurement team.
3
We should ask for statistics pertaining specifically to the SCC contract(s) in question, not the contractor’s overall
figures since they might be involved in higher risk activities elsewhere which is not relevant to SCC.
4
N.B. Contract Managers may also be Premises Managers and therefore need, in addition, to be responsible for
items under the heading ‘Premises Managers’
10 Document Control
Name Comment Date Version No.
Autho Martin Fisher Feb 13 0.1
r
Comments from RH 0.2
Comments from Workshop Feb 14 0.3
Comments from AG Mar 14 0.4
Further comments from RH 17 Mar 14 0.5
Comments from Geoff Dobson 30 Apr 14 0.6
Comments from meeting with RH & AG 9 Jun 14 0.7
Further comments RH & AG 10 Jul 14 0.8
Approved 11 Sep 14 1.0