Apprentices KPIs In Public Contracts. Daniel Milnes Head of Business Law Forbes 2012

Transcription

1 Apprentices KPIs In Public Contracts Daniel Milnes Head of Business Law Forbes 2012

2 Legal Notice Your Attention Is Directed To This Note These materials are supplied as general illustrations of legal issues and not as legal advice applicable to any particular person or situation. These materials may not be relied upon as legal advice. Forbes shall not be liable for any loss caused to any person through any action or omission made in reliance on these materials or any connected presentation. Forbes 2012 All Rights Reserved

3 Making Apprenticeships a Legal Requirement The benefits of apprenticeships apply to suppliers too and are widely recognised Making use of apprentices a legal requirement is levelling the playing field between tenderers Making the requirement enforceable allows for action against operators who do not deliver Having apprentices working on sites can create more sustainable tenancies for the housing association.

4 Is This Legal? Yes if you do it properly Social considerations are mentioned in the EC Directive behind Public Contracts Regulations 2006 They may, in particular, be intended to favour on-site vocational training or to implement training measures for the unemployed or young persons See also Public Services (Social Value) Act 2012 The authority must consider (a)how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and (b)how, in conducting the process of procurement, it might act with a view to securing that improvement.

5 Is This Legal? Buying Social European Commission October 2010 Contract Performance Clauses are the recommended way to introduce this type of requirement NOT hidden technical specification or selection criterion or award criterion BUT should reject a bid not agreeing to the contract terms because tenderers bid to perform the full terms of the contract DON T require proof of compliance during the procurement process the clause relates to performance if the contract is awarded

6 Is This Legal? Buying Social European Commission October 2010 Rules Governing Contract Performance Clauses MUST be linked to the performance of the contract (i.e. apprenticeships in what the contractor does) MUST be published in the OJEU notice and the ITT MUST comply with EU Law (including fundamental TFEU principles: fairness, equal treatment of bidders)

7 Is This Legal? Buying Social European Commission October 2010 Local jobs for local people? o Is the objective apprenticeships in general or local employment specifically? o May be possible to work in some local factors in (e.g. to ensure equal access to apprenticeship opportunities for local people) o Local apprentices may be preferable for tenderers o Access to a pooled apprenticeship scheme in the area (or secondment of Housing Association s apprentices) may be the way for smaller contractors to bid for the contract

8 How Does It Work? Specify the social requirement that relates to the performance of the contract Include it in the OJEU, the ITT and the contract Monitor it (using measureable criteria while allowing for different types of performance of the requirement e.g. pooled apprenticeship schemes) Enforce it (at least include the ability to do so and keep the choice open) Include remedies short of termination (e.g. claw back payments or loss of place on framework)

9 How Does It Work? Can it be added to existing contracts? o May be hard to do where contract was established on a different basis o Increased costs to contractor may require a price increase and that makes the variation harder to do as a matter of procurement law What about framework agreements? o Some frameworks allow for more scope to establish KPIs in call-off documents o Especially where call-offs include a bid on price (see above)

10 Summary It can be done It is legal It is enforceable Keep contractual options open Plan ahead from the start of the procurement process Allow for different performance models to encourage more diverse bids Take specialist advice