by Kate Hiller, Legal Services Team Manager
With ever-pushed local authorities struggling for resources, frameworks continue to become more and more popular as the preferred choice to procure goods and services. It is seen as the quickest and easiest way to get the goods and services you need with what is expected to be minimum effort but is that really the case?
A framework arrangement establishes relationships between contracting authorities and suppliers that enable contracts to be ‘called off’ when certain goods and service are required. The framework agreement will set out the terms on which contracts will be awarded and will set certain parameters around quantity and price. If a contracting authority wants to procure goods and/or services from a framework it will enter into a ‘call-off contract’ directly with a supplier, either under a direct award or by running a mini competition.
Provided that a framework has been established in compliance with the Public Contract Regulations 2015 (the “Regulations”), local authorities can access the framework without running their own procurement exercise in accordance with the Regulations. The framework agreement will specify if direct awards are permitted and on what basis a contract can be awarded without competition. Similarly, it will set out how mini competitions should be run, with requirements typically less onerous than the Regulations. There are numerous well-established frameworks that local authorities can go to e.g. CCS, g-cloud, SCAPE, ESPO, etc.
So why are they so popular? Often clients can have a supplier in mind (particularly when they have used someone before and have found them to be good) and if you can find them on a framework that is seen as a good way to secure that particular supplier. Alternatively, a client may not be too sure what they want and a framework is seen as an easier starting point because somebody has thought of most of it for you. Time can be a big factor – it is common to be told that we don’t have time to do our own procurement so we have to use a framework because it is quicker.
Notwithstanding their popularity, there do appear to be some myths with frameworks that not many people realise including the following:
- MYTH: A framework is in place of doing a procurement – securing goods and/or services from a framework is doing a procurement. You are procuring them through the framework and are therefore still subject to certain rules, if not those that require you to do your own tender exercise. Your contract is still one that falls under the Regulations if it meets the relevant threshold.
- MYTH: I don’t need to check the terms and conditions because somebody did that when they set up the framework – before entering into any contract it is always advisable to get legal advice on the terms, unless it is a standard contract that you are already familiar with. Yes, the terms should be legally correct but do you know what they say and what they mean? Advice on the terms will help you understand whether the framework is right for you so it is always advisable to get it checked before you start your award process rather than just before you are about to sign on the dotted line!
- MYTH: My preferred supplier is on the framework so it must cover what I need – suppliers can often provide a variety of services and not every framework they are on will necessarily cover all those services. Sometimes they may be on a framework for just some of the services they provide, so you need to be sure that those are the services you want before you use the framework. It is always important to check what services the framework covers as well as who the suppliers are.
- MYTH: The supplier has to use their own terms – a properly procured framework should set out the terms on which call-off contracts can be awarded. They may not be bespoke terms (e.g. they could be standard contracts like JCT or NEC in the case of construction contracts) and they may not always be included within the framework agreement itself but it should be clear what terms the call off contract can be let under and whether that includes the supplier’s standard terms or not. So if a supplier tries to persuade you to enter into the contract on their terms, make sure you check the framework agreement first.
So given the above, it might not always be as easy as it seems to use a framework but is it still the quickest way to procure? Possibly but perhaps not as much as people may think. It’s worth thinking about what you still need to do with a framework:
– You still have to draft a scope of works/specification for your specific contract. Some of the general technical requirements may have been covered for you but you still have to draft something that covers what you need and how it is to be delivered to your local authority.
– You still need legal support to draft a contract (and possibly review the framework agreement as well). There may be template call-off contracts but they will still need reviewing and populating.
– If you run a mini competition, you will still need to evaluate submissions, so you will need to prepare documents for that and set aside time to assess the responses.
– You still need to arrange your internal authorities to award and sign the contract.
Using a framework is in fact still quite similar to running your own tender exercise, if you use it properly. It is perhaps more the case that each stage perhaps has a little less time to it that overall provides the sense of a bigger time saving.
It is curious that often price is not given as a reason to use a framework (especially given the duty on local authorities to secure best value). It should be the case that it is more cost effective to use a framework because it is effectively bulk buying but often suppliers will come and say that they can offer a better price outside of the framework. Sometimes that’s due to a moment in time, sometimes it’s about new client relationships and sometimes it’s about the scope of the services being sought. It is worth bearing in mind whether running your own tender exercise may get you better rates in some circumstances.
Generally, frameworks have quite an appeal and to some extent probably are quicker and easier but the key to success is to make sure you still procure properly under them. It is not a ready-made solution, it is a partly-made solution that you need to finish off and tailor to your authority’s needs, so think carefully about whether a framework is the right choice and consider testing the market first if you need to.