In the current climate, most conversations about public procurement will sooner or later mention the B-word: Brexit. You may be steeling yourself for massive changes, but the government was prominent in shaping the current EU legislation around procurement and also included additional obligations in the UK version. So it seems likely that the current procurement rules will be with us for at least the short- to medium-term. Academies and maintained schools should not tear up their copies of the regulations just yet.
Below are some key considerations in the rules for schools, to help maximise value for money from procurement activity.
Care with specification
Naturally, your first consideration will be “what do I need to buy?” followed swiftly by “what is my budget?”
The market will in most cases be able to provide the services/goods/works you ask for. Ensure your specification is carefully drafted to maximise value for money and to avoid gold-plating requirements. High-spec or innovative solutions are likely to come with a cost premium; consideration should be given as to whether this provides value for money on a case-by-case basis.
Ensure your specification is carefully drafted to maximise value for money
Conversely, underspecified contracts – while they may appear more cost-effective – might not be fit for purpose and could be more expensive in the long run. This is true of IT contracts for which maintenance and servicing costs have not been taken into account during procurement.
Futureproof and flexible
The procurement rules allow schools to make variations to contracts, without a new procurement process, that are envisaged in the procurement process and are provided for in “clear, precise and unequivocal” review clauses. To take advantage of this, consideration should be given to the school’s future needs under the contract at the pre-procurement stage. Futureproofing contracts in this way helps schools to mitigate risks and demonstrate that value for money is obtained by market testing for optional modules/services.
Finally, schools are now required to compile a report of the key decisions taken in a procurement process under regulation 84 of the rules. This report must be sent to the Crown Commercial Service on request and is potentially disclosable under freedom of information laws. We are seeing a trend of disgruntled bidders requesting this report immediately following notification that they were not successful (often as a prelude to an actual or threatened complaint or legal challenge). Care should be taken to ensure that procurement reports are completed at the same time and prepared in the knowledge that they could be disclosed to the Crown Commercial Service, or, indeed, more widely. Schools are not immune to procurement challenges.
Alice Reeve is a partner at leading education law firm Veale Wasbrough Vizards