Duty Contracts 16/12/2014. Fit for Purpose? Law Society view. What we will cover

Transcription

1 Duty Contracts Fit for Purpose? Law Society view In the interests of access to justice, the public and the legal profession, we have decided to seek a judicial review of the legal aid crime duty tender process. In our opinion, the process creates a serious risk of market failure which could have major implications for society as well as the profession. We know that our members have concerns about their livelihoods, but also more widely about the impact the outcome of the process will have on access to justice for the most vulnerable in our society. What we will cover Timetable Tender Process Structure Essential Criteria Selection Criteria Financial Assessments Award Criteria Delivery Partnerships Fee Schemes What you should do next 1

2 Timetable 27 th November 2014 Tender opened 22 nd December 2014 FAQ document published 29 th January 2015 at 12 noon Tender closes Mid June 2015 Notification of outcomes 30 th June 2015 Contract start date (mobilisation period) 1 st October 2015 Commencement date for services under the new contract Tender Process What is on offer? Four year contract with break provision, extendable for one year Equal share of duty slots in the procurement area Obligation to cover the slots Documentation specifies Anticipated Contract Value No guarantee of work volumes and values No protection against the work moving across the procurement area Tender Process - Structure Tender conducted through Bravo e-tendering system You must submit One organisation ITT including financial assessment One or more procurement area ITT Mandatory Attachments re financial assessment You must hold an own client contract to bid Multiple bids by one or connected organisations in single procurement area not permitted You can be a lead bidder and a delivery partner in a second bid OR You can be a delivery partner for two lead bidders You can bid in as many procurement areas as you wish 2

3 Tender Process Essential Criteria Relevant Quality Standard SQM or Lexcel Must be regulated Office requirement Usually, in the procurement area In London, the neighbouring area rule applies In the split areas, in either part of the split area. Full time supervisor Ratio of no more than 4 fee earners per supervisor Tender must be authorised by your COLP Tender Process Selection Criteria Regulation Management team experience Delivery (ie casework) experience Staffing and recruitment Office arrangements Tender Process Selection Criteria Procurement Area ITT requires you to provide The address of your office A list of all managers, supervisors and caseworkers Details of any delivery partners It is NOT required that any delivery partner s office must be in the procurement area You do not need to list the staff of your delivery partners 3

4 Selection Criteria Management Experience Manager must be in your organisation, not delivery partner s Manager must be deployed for at least 17.5 hours on the particular procurement area contract No manager can be named in more than two procurement area ITTs The same manager can be named for the different questions within one procurement area ITT Selection Criteria Management Experience Qualifying period is the 12 months before the bid Manager must have been a member of the management team at the organisation and/or another organisation for that 12 month period If the named manager becomes unavailable, you may substitute someone with as great or better experience Selection Criteria Management Experience Has managed the volume of police station cases expected under the contract Has managed the volume of Magistrates Court cases expected under the contract Has managed the volume of Crown Court cases expected under the contract Has managed contracts for legal advice and representation to the expected contract value Has managed a single contract to the anticipated contract value for at least two years immediately preceding the bid 4

5 Selection Criteria Delivery Experience Experience can be of either your own staff or those in delivery partners The caseworker must be deployed for at least 17.5 hours on the particular procurement area contract No caseworker can be named in more than two procurement area ITTs The same caseworker can be named for the different questions within one procurement area ITT If the named member of staff becomes unavailable, you may substitute someone with as great or better experience Selection Criteria Delivery Experience Experience depends on the named individual having had conduct of an Entire Case either in the past 12 months (3 points) or the past three years (1 point) Definition: "a case which the person in question must from initial conduct of the case to final hearing, have had professional conduct of or had direct supervision of, including the provision of advice and assistance at the police station, and the representation of the client in at least one hearing at a Magistrates Court (and/or Crown Court where applicable), not including a case management or committal hearing." Selection Criteria Delivery Experience Has had experience of an Entire Case of: Homicide or wounding with intent Class J serious sexual offence Terrorism offences under the Terrorism Act 2000 A contested Crown Court matter Representation of a minor London only: Serious fraud prosecuted by the SFO Central London only: Extradition 5

6 Selection Criteria Delivery Experience Has had experience of a set number of cases of Offences of dishonesty Drug offences Offences against the person Selection Criteria Staffing and recruitment Figures based on one FTE for every 83,000 of Anticipated Contract Value Includes your capacity and any delivery partner Two criteria: You currently employ or have signed engagement agreements with staff to cover 100% of the ACV (5 points), 75% (3 points), 50% (1 point) or less(0 points) You currently employ or have signed engagement agreements with CLAS-accredited staff to cover 75% of the ACV (3 points), 50% (2 points), 25% (1 point) or less(0 points) Selection Criteria - Office Cf Essential Criteria Applicant organisation must meet the requirement itself, not through a delivery partner 10 points if you have an office already established in the procurement area (or a neighbouring area in London), zero if you do not In split areas, you score 10 points for an office in the area, and 5 points if you have an office in the other half of the split area. 6

7 Selection Criteria Tiebreak Questions Plan is to shortlist twice as many firms as there are contracts, but the LAA may shortlist slightly more in the event of ties If there are fewer bids than the LAA intends to shortlist OR the previous questions separate out enough firms, the tiebreak questions will be irrelevant Selection Criteria Tiebreak Questions Three questions, the first is in two parts Free text answers, scored on a 0-5 scale Maximum of 4,000 characters per answer The LAA will try to separate firms on the basis of the first question, and only move on to the second, and then the third, if firms are still tied at each stage. If firms are still tied, all will be shortlisted Selection Criteria Tiebreak Questions 1a. Describe how you will ensure that clients receive an end-to-end service so that they are represented appropriately from first contact through to instructing advocates at the Crown Court in this Procurement Area. 1b. Describe how you will ensure that all cases are managed and tracked as they move through the criminal justice system from police station to court(s) in this Procurement Area. 7

8 Selection Criteria Tiebreak Questions 2. Describe how you will facilitate the training and development of members of staff throughout their time employed by the organisation in this Procurement Area. 3. Describe how you have implemented a significant change programme. Financial Assessment Established businesses must submit the Established Business Financial Assessment Form Other applicants, and firms bidding for contracts totalling more than three times their current turnover, must submit Business plan Cash flow forecast template (core bid) Cash flow forecast template (maximum bid) Basic Financial Assessment Key financial ratios will be calculated automatically for established businesses, and manually by qualified finance professionals for other business types Red-Amber-Green ratings will be assigned Firms with Red ratings will have their own client tenders looked at A Red Plus rating will be awarded if A bankruptcy order, IVA or CVA is in place There has been failure to fulfil tax liabilities The organisation or key personnel have CCJs 8

9 Basic Financial Assessment A Red Plus rating will result in the automatic failure of the bid A Red or Amber rating will not prejudice the bid, but if successful, the LAA may impose additional contract conditions designed to protect public funds A Green rating will lead to the bid proceeding normally Expansion Capacity Assessment Applies if contracts total more than three times your current turnover Turnover of your whole firm Irrelevant if you intend to meet capacity via delivery partners Conducted by qualified finance professionals Must show Sufficient funds to set up and expand as described Forecasting is based on realistic cashflow assumptions Sufficient income in first two years to meet liabilities Sufficient reserves to deal with 5% unforeseen costs Expansion Capacity Assessment You must specify a core bid Your whole tender constitutes your maximum bid If your core bid is less than three times your turnover, it will not be subject to the Expansion Capacity Assessment If your maximum bid fails the assessment but your core bid does not, your core bid alone will proceed. 9

10 Tender Process - Award Criteria Four sections Management team (20%) Delivery team and recruitment (30%) Implementation and delivery (40%) Flexibility (10%) Each question in several parts Free text answers, but the IFA spells out what the questions are looking for Maximum of 4,000 characters per answer Award Criteria Management Team Assurance of quality (40%) How will you meet KPIs How will you identify and address poor performance Quality control of delivery partners Explanation of roles (20%) Have all management tasks got a designated owner? Is each individual suited to their responsibilities? Succession and contingency planning How resources will be managed (40%) Robust line management Managing of shifts, workloads and absences Motivation and retention of staff Award Criteria Delivery Team and Recruitment Staff recruitment and induction process (20%) Systematic processes Understanding of current needs and succession planning Higher marks if staff already in place Identifying necessary skills and qualifications (27%) Ensuring you have enough staff with the right qualifications Steps needed to achieve necessary levels 10

11 Award Criteria Delivery Team and Recruitment Supervisory arrangements, including for delivery partners (33%) Staff have effective access to supervision Plan to address temporary Supervisor absence Supervisors experienced with high volumes and values of work Supervision appropriate to needs of supervisees Training needs and staff development (20%) Long term training plans Continual improvement of staff skills Training contracts offered Award Criteria Implementation and Delivery Access for clients across whole procurement area (25%) How will clients know how to access services? Ensuring no delay or cost for clients in accessing services Privacy and confidentiality Deployment of staff across procurement area (25%) How will you cover all the duty slots? How will you meet the needs of all population centres? Award Criteria Implementation and Delivery Appropriate case allocation (15%) How do you ensure cases are allocated according to the skills needed? Digital technology (10%) Using digital technology to deliver a more efficient and more effective service Plan for procuring IT infrastructure Cyber-security Business Continuity Plan (5%) 11

12 Award Criteria Implementation and Delivery Arrangements for instructing experts and Counsel (10%) Due diligence Value for money Quality Understanding and responding to the needs of clients (10%) Protected characteristics and language needs Customer Service policy Complaints-handling process Award Criteria - Flexibility Risk of dependency on the Duty Provider Contract (30%) Higher marks if you have diversified income streams Credible plan to develop business to include sources of income other than publicly funded work Managing short term fluctuations in volumes (40%) Ability to expand for a sustained period (30%) Award Criteria - Tiebreaks In the event of a tie, contracts will be awarded based on, in order Scores on question C, implementation and delivery Scores on questions C1 and 2 combined Scores on question C3 If firms are still tied, contracts will be awarded on the basis of random allocation 12

13 Delivery Partnerships You may bid with up to three delivery partners The Applicant Organisation must do more work than any one delivery partner, and at least 30% of the work in a rural area 45% of the work in an urban area No delivery partner may do more than 40% of the contract value These figures will be monitored on a rolling 12 month basis Delivery Partnerships A delivery partner will be your agent All billing of the LAA must be done through you The client will be yours even if you never see them You will be liable for any complaints or negligence claims You will need to find a way to address conflict and confidentiality issue If you name a delivery partner, you must commit to them until the end of the first year of the contract If they drop out before contract award, your bid for that procurement area will be rejected If they drop out after contract award, it will be dealt with as a matter of contract management Delivery Partnerships You must have a written agreement in place with each delivery partner by the time you submit your tender The agreement must cover all the items at clause 3.26 of the draft contract standard terms, which include: How work will be allocated between the organisations Performance standards and remedies Arrangements to protect confidential information Payment arrangements A right for both you and the LAA to access and review Contract Work undertaken by the Delivery Partners Dispute resolution processes and termination rights 13

14 Contract awards Firms will not be notified if they are shortlisted Awards will be made in mid June 2015 If you have bid in multiple areas, your choice is to accept all areas you are offered or none, regardless of whether you are offered all that you bid for. There is no right of internal appeal against a refusal to award you a contract There will be verification during the mobilisation period Remuneration Schemes: Police Station Single national fixed fee coming in: plus VAT and disbursements Higher fee for London cases: plus VAT and disbursements Escape provisions will remain Underlying hourly rate cut by the second 8.75% Travel in excess of 90 minutes one way will be paid Remuneration Schemes: Magistrates Court Distinction between designated and undesignated areas removed Lower and higher standard fees combined Case type distinctions retained Cat 1a Cat 1b Cat Cat Escape mechanism retained Duty scheme still paid on hourly rates 14

15 Remuneration Schemes: Crown Court Revised Litigators Graduated Fee Scheme for cases under 500 PPE Case length no longer a factor Three factors: Offence type Banded PPE count Case type (guilty plea/cracked trial/not guilty plea) Current structure remains for cases over 500 PPE, subject to fee cut Cracked trial fees restored in either way cases where prosecution offers no evidence TUPE It is your responsibility to take advice on TUPE Our view is that TUPE is unlikely to apply However, there is still a risk of challenge In next round of contracts, much higher likelihood it will apply Next steps: making your decision Read all documentation immediately Decide whether to bid Decide in how many procurement areas you will bid Take a view on delivery partners Your COLP needs to consider the position in respect of Principle 8 "run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles" If you decide not to bid, prepare your new business plan outside the duty market 15

16 Next steps: preparing a bid Allocate the task of completing the various parts of the form as appropriate Firm up agreements with delivery partners Complete tender forms early Think about verification Read LAA responses to questions Review tender, and get someone else to do so Submit well before deadline of noon on 29 th January 2015 Prepare for losing Questions? 16