BARNSLEY METROPOLITAN BOROUGH COUNCIL

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1 BARNSLEY METROPOLITAN BOROUGH COUNCIL This matter is not a Key Decision within the Council s definition and has not been included in the relevant Forward Plan Report of the Director Finance, Assets and Information Services Contracting Authority for a Framework of Development Brokers/Advisors 1. Purpose of Report 1.1 To obtain approval to Barnsley Council being the Contracting Authority to host the procurement of a Framework of Development Brokers/Land Advisors by NPS Barnsley. 2. Recommendation That Barnsley Metropolitan Borough Council becomes the Contracting Authority, as defined in the Public Contracts Regulations 2015 (a body governed by public law) for a Framework of Development Brokers/Land Advisors, to be procured and managed by NPS Barnsley. 3. Introduction 3.1 On the 25 th August 2015 NPS Group posted the Contract Award Notice for its Social Infrastructure Development (SID) Framework, following appointment to the Framework of Bouygues, CCG, Morgan Sindall, Wates and Willmott Dixon. The main aim of the SID Framework is to deliver social infrastructure using the development value of surplus public assets, and includes:- - Raising of development finance - Taking development risk - Obtaining planning permission - Development and disposal of sites - Management of local supply chain - Design and construction of community assets and associated infrastructure through the value generated from developing surplus sites/assets. 3.2 The SID Framework is accessible by all public sector bodies and charitable organisations within the boundary of the United Kingdom. NPS Barnsley procurement team is managing the framework on behalf of the NPS Group, and will share in the access fees payable by clients accessing the framework. Already a 250M pipeline of projects, at varying stages of maturity from initial viability assessment to outline design/development brief, exists for the SID Framework. See Appendix A for more information on the SID Framework. 1

2 3.3 Clients will identify land for transfer and shape an outline scheme and development brief prior to engaging one of the developers through the SID Framework. Accordingly, and to engage successfully with the SID Framework, many public bodies may find it helpful to use the services of a Development Broker/Land Advisor. A Broker will provide the resources and capacity to develop the project or scheme so it is sufficiently defined to allow for a robust call off process through the SID Framework. 3.4 Accordingly, NPS Group has approached the Council to request it procures a Framework of Development Brokers/Land Advisors to complement the NPS Group SID Framework, but also to provide contingency support to the Council s intentions to release value in its own surplus assets through development. The Broker Framework will provide clients with a fully OJEU compliant, fast-track procurement route to broker services, where brokers will be responsible for undertaking and financing, at their own risk, initial viability assessments, feasibility studies and viability modelling, concept design, and technical development including the securing of planning permission and other necessary consents. The Broker Framework, just like the SID Framework, will be accessible to public bodies and charitable organisations throughout the UK. 3.5 Whilst NPS Property Consultants has put in place the SID Framework, a separate Contracting Authority for the Broker Framework would be preferred, particularly given brokers will be working on land development solutions to tender through the SID Framework. 3.6 NPS Barnsley is the only NPS Company offering procurement services to clients. It is considered the Centre of Excellence for procurement across NPS Property Consultants, and is increasingly involved in procurement activity on behalf of the wider NPS Group. NPS Group s approach to the Council on the Broker Framework included the suggestion that NPS Barnsley procures and manages it on behalf of the Council, at no cost to the Council. This is a role NPS Barnsley has undertaken successfully on behalf of the Council on a number of occasions, on regional and sub-regional construction frameworks (EN Procure and YORCivil). It is extremely experienced in this kind of work, and this opportunity will support delivery not only of the NPS Barnsley business plan, but also growth/further development of its procurement service offering. 4. Consideration of Alternative Approaches 4.1 Barnsley MBC could decide not to accept this proposal to host the Broker Framework using NPS Barnsley procurement and framework management services. It could also decide to procure its own broker services as and when required, through a framework solution or one-off contracts. 2

3 4.1.1 This approach has been rejected for the following reasons: Barnsley MBC has ambitions to develop its own surplus assets and, depending on scale, size of those opportunities, may well need easily accessible broker services in the near future to supplement its own resources and deliver its requirements in a timely manner. Accordingly it needs a readily available procurement solution that isn t currently available in the marketplace. Barnsley MBC also does not possess the construction knowledge, skills and resources to procure the Broker Framework, and subsequently successfully manage it. It vested that specific specialism, resources and function in its joint venture, NPS Barnsley. 5. Proposal and Justification 5.1 The NPS Group want NPS Barnsley to procure and manage a Framework of Development Brokers/Land Advisors. To achieve this NPS Barnsley are seeking the Council s approval to being the Contracting Authority to host the procurement of a Framework. 5.2 There is no requirement for Barnsley Council to use the Framework for its own services. The cost of procurement and management will be wholly met by NPS Barnsley. The Council could use the Framework if suitable services were required. 5.3 The profits made from the Framework will flow back to Council through the NPS Barnsley agreement. The Framework agreement includes a user agreement clause whereby users indemnify the Council for services commissioned. The framework will also provide the Council with business intelligence of what other organisations are procuring and potential to meet some of the one public estate aspirations muted in the SCR devolved government proposals. 5.4 This framework supports the growth aspirations of NPS Barnsley given its procurement team will be managing two national frameworks in the form of the Broker Framework and the SID Framework. Furthermore, there will be no cost to Barnsley MBC for this Broker Framework procurement and management service. 6. Delivering Sustainable Community Strategy Ambitions and Local Area Agreement Outcomes 6.1 It is not considered that this report has any impact on the delivery of sustainable community strategies or local area agreed outcomes. 7. Long Term Sustainability of the Proposal 7.1 The proposal will contribute to the long term sustainability of the NPS Barnsley joint venture. 3

4 8. Impact on Local People 8.1 It is not considered that this report has any impact on local people. 9. Compatibility with European Convention on Human Rights 9.1 It is considered that there is no potential interference with Convention Rights. 10. Promoting Equality and Diversity and Social Inclusion 10.1 Equality and Diversity and Social inclusion issues will be factored into the Broker Framework procurement and delivery process through implementation of an Equality and Diversity Impact Assessment. 11. Reduction of Crime and Disorder 11.1 It is not considered that this report has any specific affect on the reduction of crime and disorder. 12. Conservation of Biodiversity 12.1 It is not considered that this report has any specific issues related to conservation of Biodiversity. 13. Risk Management Issues, including Health and Safety 13.1 The risks associated with this framework are similar to any public procurement exercise/framework management commission, for example:- - Non-compliance with procurement legislation - Ineffective deployment of resources - Failure to achieve value for money - Lack of propriety/regularity - Failure to deliver BMBC s strategic vision and priorities - Agreed processes, rules not followed - Launched framework does not meet expectations in terms of volumes/returns/delivery quality - Inappropriately qualified or resourced team to effectively manage the framework - Contract/framework is poorly managed - Ineffective stakeholder communication - Negative publicity/damage to reputation 4

5 13.2 This framework proposal, including contracting authority role and proposed NPS Barnsley procurement/framework management is no different to any of the other regional/sub-regional frameworks that Barnsley Council has been involved with and hosted using NPS Barnsley services. Furthermore, there has never been any question about NPS Barnsley s adherence to the procurement legislation, availability of sufficiently experienced resources, effectiveness of their framework management, robust adherence to the provisions of the framework, quality of call off contracts, user satisfaction with their framework management, sound communication, on any of these frameworks. In fact, NPS Barnsley resources have always played a full and integral role in regional framework management groups, and are highly respected It is also standard industry practice for any framework access agreement, which is signed by all public sector organisations wishing to call off from any framework, to contain a clause along the lines of any client entering into a project call off agreement with a framework contractor/consultant shall save harmless and indemnify the Contracting Authority (i.e. BMBC) from and against any and all loss, damage, liability, claims actions and costs whatsoever arising out of or in connection with the Access Agreement, the use by the client of the framework for the project or use by the client of information provided by the Contracting Authority Framework agreements also require clients wishing to use the Framework to satisfy themselves regarding all aspects of the framework including, but not limited to: - Adequacy of the framework for their purposes - Compliance of the framework with the EU procurement directives, the public contracts regulations 2015, any other statutory or regulatory provision and the client s own procurement rules and requirements - The adequacy of the framework selection process including the selection and appointment of the framework contractors/consultants - All aspects of the contract documentation and any other documentation issued or made available by the Contracting Authority, and - The legal and financial status, technical capability and capacity, health and safety record, equal opportunities standards, records and systems and insurances of the framework contractors/consultants 13.5 Clients wishing to use frameworks have to acknowledge that the framework access agreement does not impose any contractual obligation or liability on the Contracting Authority and no warranty is given or implied that the framework will meet the requirements of clients With regards to adequacy of resourcing, NPS Barnsley has already identified a Framework Manager for this Broker Framework, supported by the wider procurement team and procurement helpdesk. The framework management duties will include:- - Providing procurement advice relating to the service requirement 5

6 - Carrying out broker overarching framework KPI and call off KPI coordination, monitoring and reporting, including performance improvement plan instigation and management - Co-ordination and monitoring of any associated employment and skills requirements of broker framework service providers - Briefing potential clients on broker framework procedures in relation to call off - Preparation and provision of standard broker framework call off documentation (for example, proformas, typical scoring regimes, tender documentation and contract administration forms) - Provision of tender call off evaluation report and recommendations based on tender submissions - Regular checks with framework service providers on mandatory requirements such as E&D, insurances, financial checks, H&S compliance etc. To ensure an efficient and effective process is consistently adopted, NPS Barnsley will develop client broker framework user guides, flowcharts, a standard suite of key briefing, call off and contract award and contract administration documents. NPS Barnsley will train both users and service providers on the framework in strict adherence to its provisions and, if BMBC agrees to be the contracting authority, NPS Barnsley will manage the framework on the council s YORtender electronic tendering portal to ensure a full audit trail of process, documents and resources is readily available and accessible to BMBC NPS Barnsley would also recommend the establishment of a Broker Framework Board on which a representative of BMBC would sit. The board would be chaired by NPS Group and ensure appropriate governance of the framework. It would convene quarterly and consider such aspects as finance (access fees), framework performance and any service provider performance issues, framework marketing, project pipeline etc. 14. Financial Implications 14.1 The Council will not be responsible for paying NPS Barnsley for procurement or framework management work undertaken in relation to the Broker Framework. Access fees will be payable by clients wishing to utilise the Broker Framework and, if Barnsley Council agrees to host the framework, it will immediately benefit from 50% of any profit earned on the framework by virtue of its joint venture with NPS Barnsley NPS Barnsley has always used Barnsley Council services for associated framework/procurement duties, such as completion of financial checks, H&S advice etc., for which Barnsley Council has earned fees/income. This arrangement will continue with the Broker Framework. 15. Employee Implications 15.1 There are no employee or TUPE implications arising from this proposal. 6

7 16. Glossary Not applicable 17. List of Appendices None used. 18. Background Papers Not applicable Office Contact: Jeremy Sykes Telephone No: Date: 01/09/15 7

8 Contracting Authority for a Framework of Development Brokers/Advisors Annex - Consultations (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) Financial Implications - The Financial Services Manager for Finance and Property Services has been consulted. Employee Implications There are no employee implications Legal Implications The legal and governance service have been consulted on this. Policy Implications - No policy issues have been identified. ICT Implications - No ICT issues have been identified. Local Members - The issues do not directly affect members or their wards. Health and Safety Considerations - No Health and Safety implications have been identified. Property Implications There are no property implications as a result of this report. Implications for Other Services - There are no implications for other services. Implications for Service Users -There are no implications for service users. Communications Implications - No communications issues have been identified. 8