BACKGROUND

1  OVERVIEW

1.1. These Contract Procedures form part of the Council’s Constitution. Compliance is therefore mandatory. Contravention may lead to the Council invoking its Disciplinary Procedures and Rules.

1.2. These Contract Procedures do not apply to the initial exploration of procurement options, where it is necessary to operate creatively in considering Best Value solutions for the Council. They must, however, be followed in the subsequent letting of contracts for works, supplies or services, when identified solutions are developed into actual service delivery.

1.3. In all procurement matters, Officers and Elected Members must assess the risks associated with the various options available to them and ensure that these are managed in such a way as to achieve the best outcome for the Council and the Public. This is achieved through :-

• Identifying risks
• controlling risks
• transferring risks
• living with risks

Support and advice on Risk Management issues can be obtained from the Council’s Risk Management Section.

1.4. These Contract Procedures have three main purposes :-

1.4.1. to ensure that the Council obtains Best Value in the way it spends money, so that in turn it may offer Best Value services to the public.

1.4.2. to comply with legislation that governs the spending of public money.

1.4.3. to protect individuals from undue criticism or allegation of wrongdoing.

1.5. Every Council contract must comply with these Contract Procedures, unless:-

1.5.1. The Cabinet, on the recommendation of the Director and the relevant Cabinet Member, authorise an exception.

1.5.2. In urgent cases, when the Council’s Scheme of Delegation will apply. In such cases, the reasons for the decision will be reported by the Director and the relevant Cabinet Member to the next meeting of the Cabinet.

2. DEFINITION OF TERMS

2.1. "Contract" means a contract for the execution of building or civil engineering work, or for supplies or services.

2.2. "Contractor" includes any person, body or organisation which enters into a contract with the Council.

2.3. "Chief Executive" includes any Officer authorised by him to act on his behalf.

2.4. "Director of Central Services" includes any Officer of his Directorate authorised by him to act on his behalf.

2.5. "Director" refers to the Director for the relevant Directorate and includes any Officer of the appropriate Directorate authorised by that Director to act on his behalf.

2.6. "EU Thresholds" means thresholds specified from time to time under the provisions of EU Directives for public procurement.

2.7. "Minor contract" means any contract with a total value of £25,000 or less.

2.8. "Major Contract" means any contract with a total value more than £25,000.

2.9. "Nominated" as used in relation to a sub-contractor or supplier, includes "named", where appropriate.

2.10. In these Contract Procedures, where appropriate, a nominated sub-contractor will be regarded in the same way as a main contractor.

2.11. The term "most advantageous tender" describes a tender received by the Council which, on evaluation, is considered to provide Best Value to the Council.

2.12. The terms "tender" and "quotation", as received by the Council, mean the same unless stated otherwise in these Contract Procedures. Both terms have the meaning of "offer" in Contract Law.

2.13. The use of "he" or "him" throughout these Contract Procedures should be construed as including "she" or "her". Equally, references to the singular include the plural.

2.14. A "secure e-mail account", is an e-mail account operated by the Council’s IT Services, to which access is restricted to authorised Officers.

3. CONTEXT

3.1. The Chief Executive and all Directors will compile and keep under continuous review a written schedule of all standing delegations made by them under these Contract Procedures.

3.2. Attempting to avoid obtaining tenders in the following circumstances will not be allowed:-

• On the grounds that the price of one article is below the appropriate value limit, when the order is for several articles of the same kind or from the same contractor

or

• Where two or more orders are made out to keep the total sum below the appropriate value limit

3.3. The provisions of EU and UK Legislation will govern all contracts and will override these Contract Procedures if there is any conflict.

3.4. These Contract Procedures must be read in conjunction with both the Council’s Financial Framework and the Council’s Procurement Manual.

3.5. Each Director will compile and maintain detailed formal guidance and instructions to his staff, to give full operational effect to the principles contained in these Contract Procedures.

3.6. Each Director will submit quarterly written reports to the relevant Cabinet Member on contracts let within his area of control. Where necessary, the Cabinet Member will present these to the Cabinet.

3.7 No contract will be entered into unless there is adequate budget provision.

4.1. Technical Appraisal

4.1.1. The Director is responsible for satisfying himself that any prospective contractor is technically competent to carry out the work to the standard required in the contract. The Procurement Manual contains guidance on carrying out technical appraisals.

4.2. Financial Appraisal

4.2.1. The Director of Central Services will carry out or update, as appropriate, a financial appraisal of the contractor before the award of any contract with an estimated total value of £25,000 or more.

4.2.2. A financial appraisal will also be carried out in any other case where the Director, in consultation with the Director of Central Services, considers it necessary.

4.2.3. In the interests of avoiding delay, Directors must request all necessary financial appraisals as early as practical within any tender process. In any event, at least two weeks should be allowed for this exercise to be completed.

4.3. Insurance

4.3.1. Contractors must carry a range and level of insurance cover acceptable to the Head of Financial Services.

4.3.2. Where a contract includes any element of design by the contractor, or is for the provision of consultancy services, the contractor must carry Professional Indemnity insurance cover acceptable to the Head of Financial Services.

5. WORKS CONTRACTS

5.1. For all works contracts regardless of value, the Director will select a contractor who :-

5.1.1. can provide evidence of a proper business contact address and telephone number.

5.1.2. is registered for tax and holds a valid certificate (where appropriate).

5.1.3. is a member of a recognised trade association, where one exists.

6.1. All the checks in Contract Procedures 4 and 5 must be carried out and satisfactorily completed before the Council is contractually committed to any tenderer and before any work under the contract commences.

7.1. Contracts above the EU Thresholds

7.1.1. All contracts with a value above the EU Thresholds must be advertised in accordance with EU Directives on public procurement.

7.2. Other Contracts

7.2.1. Unless otherwise stated, the general presumption is that advertising of contracts will be concentrated on the Council’s Website.

7.2.2. At six monthly intervals, the Director of Central Services will place an advertisement in at least one local newspaper and also in all relevant trade newspapers or journals informing potential tenderers for Council contracts that the Council’s Website will carry details of all contract opportunities.

7.2.3. Whenever contract opportunities are advertised by the Council, at least two weeks will be allowed for contractors to respond.

7.2.4. The advertisement must specify details of the contract.

7.2.5. Directors may use additional advertising methods (i.e., as well as, but not instead of the Website) where they consider it appropriate and in the interests of securing Best Value for the Council. This includes direct contact with contractors considered likely to submit tenders for works, supplies or services at a competitive price and to the quality required by the Council.

7.2.6. Directors will compile and maintain, on a continuous basis, mailing lists of contractors in appropriate categories who express an interest in being informed of contract opportunities. Additional procedures, as set out in Contract Procedure 9, apply where contracts are to be let to approved contractors on Standing Lists.

7.2.7. The Director will inform all contractors in relevant categories of contract opportunities when they arise. Wherever practical, this will be by electronic means.

8. MINOR CONTRACTS

8.1. The method of procurement will be at the discretion of the Director.

8.2. It is the responsibility of the Director to be able to demonstrate that the method of procurement :-

8.2.1. represents Best Value to the Council

8.2.2. fully accounts for the expenditure of public funds in a fair and open way.

8.3. Tender documents issued by the Council must specify the works, supplies or services and the Council’s terms and conditions of contract and terms of payment.

8.4. Where tenders are invited, these are acceptable in hard copy, or by e-mail. In either case, the tenders must be in a format and layout prescribed by the Council.

8.5. Full documentation must be compiled and retained as evidence of the process followed and confirmation that it complied with all the requirements set out above.

9. MAJOR CONTRACTS

9.1. General

9.1.1. Tender documents issued by the Council must specify the works, supplies or services and the Council’s terms and conditions of contract and terms of payment.

9.1.2. Tenders must be submitted in hard copy and must be in a format and layout prescribed by the Council.

9.1.3. Where the total value of a contract exceeds the EU Threshold, it must be let in compliance with EU Directives on public procurement. Subject to this, a formal tender process must be conducted in accordance with one of the procedures set out in this Contract Procedure 9.

9.2. Selective Tendering - Standing List of Approved Contractors

9.2.1. Each Director will compile and maintain Standing Lists of approved contractors for appropriate categories and values of works or supplies and services.

9.2.2. These lists will contain the names of all contractors who wish to be included and who satisfy the Council’s technical and financial appraisals.

9.2.3. Directors will liaise to ensure that, wherever practical, Standing Lists are co-ordinated across all Directorates for similar categories of works, supplies or services.

9.2.4. At least four weeks before a Standing List is compiled or reviewed, the Director of Central Services will invite applications for inclusion in it by placing a notice on the Council’s Website.

9.2.5. At least four weeks before any review, each contractor on a Standing List will be asked whether he wishes his name to remain on this list.

9.2.6. Standing Lists will be amended during their currency and reviewed every five years.

9.2.7. A contractor may apply at any time to be included on a Standing List, subject to satisfying the Council’s technical and financial appraisals.

9.2.8. Where contracts are let to tenderers on a Standing List, tender documents will be sent to at least six contractors on the Standing List or, if there are fewer than six, to all contractors on this list.

9.2.9. Where there are more than six contractors on a Standing List, tenderers to whom invitations are to be sent will be selected by the Director. The three most advantageous tenderers for previous similar contracts (where applicable) and the next three tenderers in rotation will be invited to submit tenders. Where any of these tenderers do not wish to be included, the next tenderers on the list will be selected in rotation.

9.3. Open Tendering

9.3.1. The contract will be advertised as set out in Contract Procedure 7.

9.3.2. Invitations to tender will be sent to all contractors interested in tendering, subject to the Director being satisfied that they meet the criteria set out in Contract Procedures 4 and 5.

9.4. Restricted Tendering - Select List

9.4.1. The contract will be advertised as set out in Contract Procedure 7.

9.4.2. The advertisement will invite contractors, as part of the first stage of tendering, to apply for permission to tender, and state the last date and time for receipt of applications.

9.4.3. After the expiry of the period specified in the notice, the Director will compile a select list containing the names of at least six contractors selected from among those who have applied for permission to tender or, where fewer than six contractors have applied, to all contractors. All contractors selected must meet the criteria set out in Contract Procedures 4 and 5.

9.4.4. Documentation must be compiled and retained setting out the reasons for the selection of tenderers on the select list.

9.5. Post-Tender Amendments Procedure

This procedure is identical to those set out in Contract Procedures 9.2 to 9.4, except that post-tender amendments are permitted, provided that :-

9.5.1. The Director, in consultation with the Director of Central Services, is satisfied that this represents the best option for the Council.

9.5.2. All tenderers are notified in advance within the tender documents that such a procedure may be used and that the Council reserves the right to request post-tender amendments on any aspect of the tender.

9.5.3. All post-tender amendments are conducted in a manner that provides equal opportunity for all tenderers and that maintains the highest standards of probity and accountability.

9.5.4. All post-tender amendments must be conducted by at least three Officers of appropriate seniority, under the specific authority of the Director.

9.5.5. All post-tender amendments must be fully documented and kept on file as evidence to support the action taken.

9.5.6. At the conclusion of the amendment process, each tenderer will be invited to submit a best and final offer under the same procedure as for the receipt and opening of original tenders set out in Contract Procedures 14 and 15.

9.6. Partnering Contracts

9.6.1. Partnering relationships to be set up with contractors in accordance with the principles of Best Value must be based on a contract let following a full competitive process, using one of the procedures set out in this Contract Procedure 9.

9.7. Serial or Continuation Contracts

9.7.1. Subject to the following conditions, a contract may be let without further competition, as an extension of an existing similar contract for works, supplies or services.

9.7.2. The procurement route must comply with EU Directives on public procurement.

9.7.3. The Director, in consultation with the Director of Central Services, must be satisfied that it would result in Best Value for the Council.

9.7.4. The terms of such a contract will be based on the rates and prices contained in the initial contract, which must have been awarded competitively.

9.7.5. The terms for the extension negotiated by the Director must be approved by the relevant Cabinet Member.

9.7.6. No extension of contract will be awarded before financial and technical appraisals have been carried out or updated, as appropriate.

9.7.7. The possibility of further work constituting an extension of an existing contract, must be included in the invitation to tender for the initial contract.

10. NOMINATED SUB-CONTRACTORS AND SUPPLIERS

10.1. The Director is authorised to nominate to the main contractor, the sub-contractor or supplier submitting the most advantageous tender.

10.2. The terms of the contract between the Council and the main contractor will indicate that the Council will not be in any way responsible for matters arising from the nomination which act to the detriment of the main contractor.

10.3. Nominated sub-contractors or suppliers will be subject to the Council’s requirements as to technical and financial appraisal.

10.4. The main contractor will ensure that the nominated sub-contractor(s) enter into a sub-contract with the main contractor on terms that will indemnify the main contractor against the latter’s own obligations under the main contract in relation to the works, supplies or services included in the sub-contract.

10.5. At the discretion of the Director, in consultation with the Director of Central Services, nominated sub-contractors will be required to enter into an appropriate warranty agreement with the Council.