Contracts with suppliers from Russia and Belarus
An interesting and welcome Procurement Policy Note (PPN) was published on 28 March 2022 in line with sanctions levied by HMG following Russia’s invasion of Ukraine. PPN 01/22 provides guidance as to how contracting authorities can “further cut ties with companies backed by the states of Russia and Belarus”.
Which organisations does PPN 01/22 affect?
Namely, this guidance applies to:
- Central Government Departments;
- Their Executive Agencies; and
- Non-Departmental Public Bodies.
The above contracting authorities must implement the guidance with immediate effect; the wider public sector is also encouraged to “conduct appropriate and proportionate due diligence” and consider the PPN’s application.
PPN 01/22 Requirements
The PPN requires in-scope organisations to:
- Review their contract portfolio;
- Identify any contracts where Russian or Belarusian suppliers are a prime contractor or are part of the supply chain;
- Consider terminating applicable agreements in accordance with the terms of the contract (if a Russian/Belarusian is a prime contractor);
- Terminate applicable contracts if an alternative supplier can feasibly be sourced with minimal disruption to services. (Care must also be taken to ensure that new appointments do not impact upon value for money for the authority and the taxpayer).
Reviewing and terminating existing contracts
When reviewing contracts, in-scope authorities will need to ensure that they are equally compliant with both PPN 01/22 and the Public Contracts Regulations 2015. Comprehensive risk assessments should be undertaken before effecting contract termination.
Conducting new procurements
At present, there is no requirement to exclude Russian and Belarusian suppliers from forthcoming or live procurements. However, in-scope bodies can “decline to consider” bids from Russian/Belarusian suppliers as long as they are not registered in the UK and/or do not have significant operations in the UK.
Net-Zero and the Changing Procurement Landscape
Since 2019, the Cabinet Office has published a series of Playbooks which describe the Government’s overarching strategy and tactical approaches to sourcing in general, as well as in key procurement areas such as consultancy and construction.
Whilst the Playbooks are designed for professionals across central government departments who are responsible for the planning/delivery of projects and procurement activities, the team at NewBusiness.Dev find that these insights are invaluable in supporting our clients to win public tenders.
The most recent edition to this suite of guidance is the Net-Zero Estate Playbook, published by the Government Property Function. Applicable to both new and existing public properties, it builds on the outcome based-approach of the Construction Playbook, capturing best practices and guidelines to decarbonise the built environment. The publication focuses on overall programme management and structuring, as well as identifying project-based actions such as using greener building materials and products across the public estate.
It is also important to note that, in 2021, the Cabinet Office also published Procurement Policy Note 06/21, setting out how suppliers’ commitment to Net Zero should be taken into account in the procurement of Government contracts. Looking ahead, a Carbon Reduction Plan will likely be a key requirement for tenderers in most (if not all) contracts, regardless of their value. This is a major development that many of our SME clients have had to rapidly upskill themselves on.
Therefore, we’ve dedicated a specific page that aims to help smaller customers create their first Net Zero plans. Learn more about this service here.
Stotles & NewBusiness.Dev partner up – Find & Win Better Public Sector Opportunities Faster!
We are proud to announce our partnership with Stotles!
Stotles is a London based start-up which offers a unique sales platform fuelled by powerful data to help businesses gain insights into, and get ahead of, the £9.3 trillion public sector market.
Sales and bid teams use Stotles to save you time finding, creating, organising, and acting on more relevant opportunities in the public sector.
Our partnership with Stotles adds new, sharper tools to the belts of our customers. It will provide end-to-end guidance for navigating public sector sales and procurement cycles – from sourcing opportunities, all the way to winning them.
The Partnership Headlines
The partnership will deliver a co-offering to current customers and the broader market:
- Anyone can start finding relevant opportunities using Stotles Basics for free.
- Eligible NewBusiness.Dev clients receive NewBusiness.Dev partner-level access to Stotles – enabling additional client support to find better and earlier opportunities.
- Stotles & NewBusiness.Dev will jointly provide practical guidance to the broader market.
New Cabinet Office guidance regarding social value
The Government recently published a Procurement Policy Note (PPN 06/20) detailing its new model for delivering social value in procurement. It was designed by a joint team from the Cabinet Office and the Department for Digital, Culture, Media and Sport (DCMS), who worked with Claire Dove, the Government’s Crown Representative for Voluntary, Community and Social Enterprises (VCSEs). The new social value model will be applied to all new procurements as of January 1st 2021.
This model goes above and beyond the requirements of the Public Services (Social Value) Act 2012, stating that social value must be “explicitly evaluated in all central government procurement”, as opposed to merely “considered” as required by the 2012 Act. All new procurements must weight social value as at least 10% of a tender’s total score in order to ensure it plays a significant role in bid evaluation.
Perhaps the most notable aspect of the new model is the addition of “COVID-19 recovery” as a key theme. Bidders must describe how they will “help local communities to manage and recover from the impact of COVID-19” by conducting activities that, in delivering the contract:
- Provide employment or retraining to those left unemployed by the epidemic;
- Support people and communities to manage and recover from the impacts of the virus;
- Support organisations and businesses to manage and recover from the impacts of the virus;
- Implement social distancing, remote working, and other workplace conditions that support the COVID-19 recovery effort;
- Support the mental and physical health of those affected by the virus.
It is noteworthy that, while this new model currently only applies to central government contracts, historically this has usually trickled down to also apply to local authorities and other Public Sector organisations.
To read the PPN, please click here.
Important temporary changes to Public Sector Procurement rules
The government has introduced two key public procurement changes that have been implemented with respect to COVID-19. I am writing to you to explain (as briefly as possibly), what these policies may mean for you, and what relief – but also opportunities – may be accessible during the crisis.
The new Cabinet Office Policy Procurement Notices (PPN) offer guidance and advice to public bodies, but also companies, that are engaged in public procurement practices. These PPNs apply to all Contracting Authorities (CA). This is defined as being: all central government departments, executive agencies, non-departmental public bodies, Local Authorities, NHS bodies and the wider public sector.
Both PPN draw heavily on the Public Contract Regulations 2015 (PCR). The PCRs include provisions which are designed to cover the implementation of emergency procurement measures.
Overview of ‘Supplier relief due to COVID-19’ (Action Note)
The Cabinet Office issued a COVID-19 related PPN on the 20th March. This PPN set out information as well as guidance for CAs on the payment of their suppliers. The guidance is intended to ensure service continuity during and after the outbreak. CAs have been advised to act now in order to ensure at-risk suppliers are in a position to resume typical service delivery once the outbreak is over.
The PNN became effective on the 20th March but is scheduled to apply until the 30th June 2020.
The PPN is guided by the understanding that the outbreak is unprecedented and will have a significant impact on businesses of all sizes. It recognises that many suppliers to public bodies may struggle to meet their contractual obligations and that this may put their financial viability, ability to retain staff and their supply chains at risk. CAs are advised to take action to continue to pay suppliers. This will assist suppliers to cope with the current crises and to resume normal service delivery when the outbreak is over.
The PPN stresses, in particular, that CAs should pay all suppliers as quickly as possible to maintain cash flow and protect jobs. CAs should also take action to continue to pay suppliers at risk due to COVID-19 on a continuity and retention basis. Contracting authorities can consider making advance payments to suppliers if necessary. Typically, advanced payment would require treasury consent; however, due to the circumstances treasury consent is granted for payments in advance of need where the Accounting Officer is satisfied that a Value for Money case is made by virtue of securing continuity of supply of critical services in the medium and long term.
Moreover, CAs are advised that they should aim to work with suppliers and, if appropriate, provide relief against current contractual terms, e.g. relief on KPIs and service credits. This aims to maintain business and service continuity rather than accept claims for other forms of contractual relief e.g. force majeure.
Please note that the PPN contains a number of caveats and so, if the information above is of interest, the PPN should be read in full here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/874178/PPN_02_20_Supplier_Relief_due_to_Covid19.pdf
Overview of ‘Responding to COVID-19’ (Information Note)
The Cabinet Office issued a broader PPN, in relation to COVID-19, on the 18th of March. It is intended to distribute information and associated guidance on the public procurement regulations as they relate to the current COVID-19 pandemic.
The PPN explains that there will be a range of commercial actions that must be considered by CAs in responding to the impact of COVID-19. It outlines how CAs may need to procure goods, services and work with extreme urgency; and that this is permissible under the Public Contracts Regulations (2015) using regulation 32(2)(c).
The PPN, and associated guidance i.e. regulations32(2)(c), relate to the following options which can be used to facilitate emergency public procurement:
- Direct award due to extreme urgency (regulation 32(2)(c);
- Call off from an existing framework agreement or dynamic purchasing system (DPS);
- Direct award due to absence of competition or protection of exclusive rights;
- Call for competition using a standard procedure with accelerated timescales;
- Extending or modifying a contract during its term.
Additionally, depending on the nature of the CA’s requirement, there are further options available such as the additional delivery of supplies from an existing supplier (regulation 32(9)).
This PPN can be read in full here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/873521/PPN_01-20_-_Responding_to_COVID19.v5__1_.pdf
We would be happy to help you if you need additional resources. For example, emergency procurements can run on intense short timelines i.e. 14 days. If needed, our extensive professional capacity can be used to augment, strengthen and speed up your bid writing facilities.
Furthermore, we anticipate that procuring authorities will make more extensive use of DPS for procurements during this emergency. If you would like us to help you identify relevant DPS then please do let us know.
A successful Bid Qualification service is fundamental to the submission of bids. Unfortunately, the S.C.O.T.S.M.A.N does not work well when qualifying public sector bids. In light of this, NewBusiness.Dev has developed their own methodology called START DIRECT(ly)™. You can find out more here.
EuropeAid and Brexit
Recently one of our customers contacted us regarding a contract notice published on the OJEU. The customer was interested in bidding for a contract funded by EuropeAid. A potential barrier to entry was noted at the end of the contract notice, with the following paragraph:
“Please be aware that after the United Kingdom’s withdrawal from the EU, the rules of access to EU procurement procedures of economic operators established in third countries will apply to candidates or tenderers from the United Kingdom depending on the outcome of negotiations. In case such access is not provided by legal provisions in force, candidates or tenderers from the United Kingdom could be rejected from the procurement procedure.”
Our client is not alone in being concerned, there are currently 345 tender notices on the OJEU dealing with a vast array of requirements, ranging from modernising schools with science laboratories in Northern Cyprus, developing a new payroll IT system for the Palestinian Authority, the purchase and commission of network infrastructure for the administrative court of Tunisia to reducing plastic waste in the Americas.
We researched into this and reassured our customer with the statement that Penny Mordaunt, Secretary of State for International Development (in office 2017-2019), told a House of Commons parliamentary hearing in July 2018. During this, she argued “UK-based organisations and individuals should be able to bid for funding, participate in and lead consortia, and otherwise implement as normal all EU development programmes that are approved before December 2020,” when UK MPs will try to negotiate a free-trade deal.
The Commission has been accused of over-reaching by Mordaunt and many others, as it is “not only applying these disclaimers to the funding we channel through the EU budget, over which we do not yet have discretion; it is also applying them to funding that we have chosen to channel through the EU as our preferred delivery partner.” She added, “we have raised these issues with the Commission multiple times and we are shocked and disappointed by their behaviour… I have been very clear that, if we are contributing to UK funds and EU projects, then UK organisations must have access. We are now looking at how we can use the aid budget to protect UK organisations from this discriminatory practice.”
Claire Godfrey, Bond’s interim director of policy, advocacy and research, also commented separately on the matter: “we are very concerned that the European commission has misunderstood the eligibility criteria for UK NGOs to access funding from the EU in the event of a Brexit no-deal scenario… There is a real danger that UK NGOs will be both discouraged from applying and be discriminated against during the process, if the proper criteria are not used.” A UK government spokesman said: “We are clear that this disclaimer must be removed by the European commission.”
NEWBUSINESS.DEV – THE NEXT STAGE IN THE EVOLUTION OF OUR COMPANY
DeNové LLP was established in 2006 when we spun out of the management and technology consulting division of Deutsche Telekom AG – Detecon.
We initially established DeNové as a consultancy to assist major companies in the bidding process for large technology opportunities. Early success saw us working with T-Systems to win contracts valued at over £500 million with both Shell and BP.
The Financial Crisis of 2007–2008 resulted in many major corporates implementing bans on the use of consultancy services. Using the knowledge we gained from bidding on global major contracts, the business development division turned to also assist SMEs and new market entrants to bid for public sector contracts. Our consultancy had a big impact on this market, with highlights including:
- Working with Redfern, then a 30 person SME in Bradford, to win an £800 million contract for travel services in the UK.
- Helping Eduserv to win the largest ever contract under the G Cloud Framework at the time.
After the economy recovered, we re-established our relationships with our blue-chip customers. Notably, in 2016 we helped one of our multi-national clients to win a series of key contracts with Microsoft in Seattle, Google in California, and Apple in Ireland. Also, our project management division was growing rapidly during this period, helping Satellic to roll out the national lorry road charging system across Germany and Belgium.
With the sustainable growth of both of our divisions, it made sense to split DeNové LLP into two new corporate entities. In early 2019, the directors of DeNové LLP took the decision to divide into what is now DeNové Services Ltd and NewBusiness.Dev Ltd. The restructuring occurred in late September, resulting in DeNové Services specialising in project management, whilst we, NewBusiness.Dev, will specialise in business development and bid management services.
We believe that this will provide greater corporate focus and expertise to our customers, whilst presenting enhanced development opportunities for our staff.
Both companies will continue to collaborate closely and will always put our customers’ success at the heart of everything that we do.
PUBLIC PROCUREMENT UPDATE
Guidance relating to Public-sector procurement after a no-deal Brexit has been updated, as recent as the 25th of September, on this website.
If the UK were to leave the EU with a deal, the current public procurement regulations will continue to apply, unamended, for the duration of the implementation period. EU public procurement law will continue to apply during the transition period and relevant procurement regulations for England, Wales, Northern Ireland and Scotland will stay as they currently are now. Therefore, in the event of a deal there will be minimal disruption, in relation to public procurement practices, throughout the implementation period.
This scenario, as it relates to public procurement, will be mostly the same in the event of a no-deal Brexit. For the most part, the legal framework for public procurement and related procedures will remain unaltered. A difference is, however, that the location and sourcing of notices will be sent to a new UK e-notification service instead of the EU Publications Office. This is because, in a no-deal scenario, contracting authorities may no longer have access to the EU Publications Office and the OJEU which facilitates European public procurement (I.e. Tenders Electronic Daily (TED)). Government has amended current legislation to require UK contracting authorities to publish public procurement notices to a UK e-notification service called Find a Tender (FTS).
This service will, if the UK leaves without a deal, go live at 11pm GMT on 31st of October. The effect on business is that suppliers wishing to access UK contract opportunities from the UK public sector will need to access the new UK e-notification service instead of OJEU/ TED. Access details to this site are not yet available and will be provided, by the government, at a later date. Requirements to advertise in Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales and eTendersNI will remain unchanged. Domestically public procurement should not be altered in any major way.
If businesses wished to access contract opportunities from the EU, they would be able to locate these via OJEU/ TED. The government has, on the 16th of August, published further guidance for UK businesses that bid for overseas contracts and what to expect if there is a no-deal Brexit. This is in reference to the UK’s participation in the Government Procurement Agreement (GPA) and the effect to our participation in the event of a no-deal Brexit. The GPA is what allows UK business to bid for government contracts in other countries but is also what allows foreign businesses to bid for contracts in the UK. Presently, the UK is part of the GPA through our EU membership. If we were to leave with a no-deal, the UK is expected to re-join the GPA on substantially the same terms. This could take up to 30 days after exit day and the effect that this would have on business should be minimal. During this interval UK business will still have access to government procurements in many overseas markets but may temporarily lose some rights provided by the GPA.
G-Cloud for Dummies
G-Cloud was founded for the purpose of streamlining the public procurement processes for cloud hosting, software and support.
In the Cabinet Office’s review on Accelerating Government Procurement, they identified excessive waste built into the existing traditional procurement process, including:
- Excessive amounts of guidance with too much variation, duplication and confusion over terms.
- Elongated timescales both pre-OJEU and during the procurement.
- Serial-processing, inefficient engagement with suppliers.
- Input-based specifications vs. outcomes.
- Risk aversion.
In contrast, it is theoretically possible to complete the entire G-Cloud procurement process in just 24 hours. In light of this, G-Cloud has been a revolutionary step in procurement innovation.
Through the G-Cloud, the public sector is able to buy digital cloud-based services ‘off-the-shelf’ in what is often referred to as a pay-as-you-go approach. This avoids lock-ins to expensive contracts and facilitates innovation, flexibility, as well as time and cost-effectiveness.
The benefits of G-Cloud include:
- It is quicker and cheaper to use than traditional procurement processes.
- G-Cloud is re-tendered regularly, so it is always up to date with the latest suppliers, services and information.
- It is easy to register and apply to participate in the G-Cloud framework.
- There are no hidden charges; prices, terms and services are transparent.
- Many services are available to try at no cost.
- There is a bigger range of suppliers than any other framework
- Buyers can contact suppliers directly with questions.
- There is no ‘lock-in’ – all services state up-front how you get in and out.
- The G-Cloud eradicates the need for contract negotiations, an OJEU or ITT.
- With G-Cloud, SMEs can compete with larger companies on a level playing field.
Moreover, since its inception G-Cloud has generated sales of over £4.36bn, 43% of which was awarded to SMEs, demonstrating that G-Cloud can be a valuable resource for suppliers of all sizes.
How Does it Work?
Perhaps the simplest way of describing how the G-Cloud works is by comparing it to eBay, as the two function in quite a similar manner. Let us take a specific example:
- Step One: You hope to buy a vase.
- Step Two: You search for the vase on eBay, applying filters to specify material, size etc.
- Step Three: You shortlist the results to five vase suppliers.
- Step Four: You consider each of them individually to ensure that you get the best value for your money. The first vase does is not the style you wanted. The second is shipped from China and the delivery time is too long. The third is too expensive. The fourth is made from the wrong material. And the fifth is perfect.
- Step Five: Having considered all your options, you purchase the fifth vase.
The crucial difference is that, on the G-Cloud, buyers must be fair to all suppliers and be able to justify their final decision.
Buyers: What They Buy
Buyers seeking to procure Cloud Hosting, Software or Support can do so through the Digital Marketplace, which helps buyers find suppliers for specialist services for digital projects and cloud technology. These services can be procured through three frameworks:
- Cloud services (e.g. accounting software) can be procured through the G-Cloud framework.
- Digital outcomes, specialists and user research services can be procured through the Digital Outcomes and Specialists framework.
- Physical datacentre space can be procured through the Crown Hosting Data Centres framework.
One of the major benefits of the G-Cloud is that it is an OJEU compliant framework, meaning that any public sector buyer can buy from the G-Cloud without needing to execute a full-fledged procurement. G-Cloud does not allow for mini-tenders, but buyers can contact suppliers directly, to request clarification on the supplier’s approach to the project, including cost and timeframes. These clarification requests serve a very similar purpose to that of a mini-tender.
Via the Digital Marketplace, buyers can perform a keyword search with filters to find suppliers that meet their requirements. All registered suppliers have pre-authenticated information about their company and how work, which saves buyers time during the procurement process.
Buyers: How They Buy
G-Cloud requires buyers to consider every supplier equally and fairly, to facilitate equal opportunity in the marketplace. This requires buyers to maintain a record of each of the steps they have taken so that they can justify their final decision. Tools and Templates are available to support this.
The steps in the buying process are as follows:
- Write a list of your requirements and get approval to buy what you need.
- Search for services and save your search.
- Refine your saved search using the filters.
- End your search.
- Download your search results, review and compare services.
- Choose your service, award and sign the contract (or ‘call-off’).
- Publish the contract on Contracts Finder.
- Complete the Customer Benefits Record form.
Buyers must treat all suppliers equally. As such, if only one supplier meets a buyer’s needs, then they can award the contract to them without taking any further measures. However, it is typical that a buyer will have to draft a shortlist of suppliers. In this case, the buyer is required to choose the supplier with the most economically advantageous tender, otherwise known as MEAT.
Sellers: Getting Started
All supplier applications go through the Digital Marketplace. To apply, you must:
- Create, or log into, a supplier account on the Digital Marketplace.
- Start your G-Cloud application.
- Make the supplier declaration on the Digital Marketplace.
- Agree to the framework terms.
- Confirm how you’ll work with the government.
- Answer questions to establish grounds for mandatory exclusion.
- Answer questions to establish grounds for discretionary exclusion.
- Provide information about your organisation.
- Add service information on the Digital Marketplace.
- Use 50 words to introduce your service.
- Use 100 words to describe up to 10 service benefits (10 words per benefit).
- Use 100 words to describe up to 10 service features (10 words per feature).
- On your supplier page, use 50 words to describe your organisation.
- Before you can submit a cloud service to the Digital Marketplace, you need to add a pricing document and a terms and conditions (specific to that service) document.
- Wait for eligibility checks to be made on your information.
- Get the result of your application.
- Sign and return your framework agreement on the Digital Marketplace.
Although this process is quite simple, it is important to remember that the G-Cloud is a relatively new route to market, with different buying groups, buying behaviours and competition. It contains a number of novel contractual clauses and commercial obligations, and even the style of registration is different to what suppliers may be used to. As such, suppliers may find it difficult to navigate and often neglect to fully consider the opportunities and challenges that the G-Cloud can present.
Indeed, only a fraction of the companies listed on the G-Cloud have actually made sales. This is most likely because suppliers incorrectly assume that, as it is so easy to register with the G-Cloud, establishing a successful listing must also require little effort.
How We Can Help
NewBusiness.Dev can offer end-to-end services or help with specific aspects of the procurement process. We employ a team of expert bid writers, G-Cloud Consultants and Public Sector Procurement Specialists with extensive experience. If you would like more information regarding our bid management and Cloud services, drop us a line.
NewBusiness.Dev Ltd, Lauren McNeilage & Mary-Anne Farah