A Framework is the Quickest and Easiest way to Procure – isn’t it?

Kate Hiller, Legal Services Team Manager

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.

We are looking for a Planning Lawyer…

Senior Planning Solicitor

Band G plus 4 market supplements, £38,553 – £43,570 per annum

36.25 hrs per week, £2,856 per annum car allowance and £3,000 per annum ‘Golden Hello’ (payable annually for the first 3 years subject to satisfactory performance)

Full time permanent contract

Are you a Qualified Solicitor or Barrister (Supreme Court of England and Wales/English Bar) or Fellow of the Institute of Legal Executives or do you have equivalent relevant experience?

Do you enjoy, and have experience in, the areas of planning and regional development?

Are you ready to step into a management role or do you have existing management experience that you would like to develop further?

If you have answered yes to these questions, our Senior Planning Solicitor vacancy might be the role for you!

What are we looking for?

As our new Senior Planning Solicitor, you will lead on all planning legal matters for the Council, as well as external clients (as required).  You will have line management responsibility for one team member, so previous line management experience or an eagerness to step into a management role, is required.  As a senior member of the legal team, you will assist and support the Legal Services Team Manager and Head of Legal and Commercial Services in areas of corporate governance, as well as building strong and lasting internal and external relationships.

What can we offer to you? 

This is a fantastic opportunity for a specialist planning lawyer to take a step up into a senior role, taking on new challenges and management responsibilities.  Your development is important to us, so we will support you throughout as you take this next step in your legal career.

We have put together a generous salary package including a car allowance (with cash equivalent) and a ‘golden hello’ payable for your 3 years, plus the following additional benefits:

  • Agile working scheme with a combination of home and office working
  • 33 days holiday (including bank holidays) increasing to 38 days after 5 years
  • Attractive Local Government Pension Scheme with at least 20% employer’s contribution
  • Employee benefits programme’ including payback on medical, dental and optical expenses
  • Continued training and development opportunities

Are we right for you? 

We are a solution-focussed council.  Through listening and fair and balanced decision-making, we strive to do the best we possibly can for our community.

Legal Services play a vital role in ensuring good governance and helping officers find solutions to problems with a ‘can do’ approach.  The Legal Services team has an existing external client base of 32 clients, with plans to grow it even further.

You will be joining a Lexcel accredited team of specialist lawyers, each with their own areas of expertise, including contracts and procurement, property, regulatory and enforcement.  Our structure enables everybody to focus on their own specialisms whilst also being exposed to other areas of law through close working relationships with colleagues.

You will be supported by a first-class administration and practice management team, as well as working closely with information governance colleagues as needed.

As a Council we are embracing flexible working, acknowledging that the old days of 9-5 at the office do not need to be the norm.  This job is classed as a hybrid role, recognising that there may be times when you need to attend the offices (for example, to attend a committee meeting) but outside of that, as long as it works for us and our customers too, we are happy for you to take a flexible approach to your working arrangements through a combination of home and office based working.

Are you right for us? 

We want you to succeed in this role.  To do so, you will need to be able to undertake work in areas of planning and regional development; S106 agreements; planning enforcement; permitted development; and compulsory purchase orders.  You will also need to be comfortable acting as an advisor of or to the Council’s planning committee and as an advocate at public/planning enquiries and in courts.

You will need to be able to advise in the context of local government law and therefore experience of this is desirable but not essential, as we would hope that this will develop over time.

To fit in well with the team you need to be proactive, a quick learner, able to work flexibly and someone who can bring enthusiasm to the role both working individually and as part of the team.

If you would like to know more about the job feel free to contact Kate Hiller, Legal Services Team Manager on 01530 454379 or by email to kate.hiller@nwleicestershire.gov.uk

You can apply for any of our posts online at https://www.nwleics.gov.uk/pages/jobs_and_careers

Applications must be made using the on-line application process.

Disabled applicants who meet the essential criteria for the job will be guaranteed an interview.

We welcome applications from all sections of the community.

Closing Date: Sunday 21 August 2022

Dangerous Walls

Kerryn Woollett, Senior Solicitor

by Kerryn Woollett, Senior Solicitor

There are a number of rock/brick walls across North West Leicestershire, which are over one hundred years old. These walls may look nice and be part of the area’s history, though due to their age, they are falling into disrepair and have the potential to become dangerous.

When a structure becomes dangerous, the Council may apply, under s.77 of the Building Act 1984, to the Magistrates’ Court for an order requiring the owner to carry out works to remove the danger or, if the owner choses to do so, to demolish the structure. If the works are not carried out, then the Council can carry out the works themselves and recover the costs of doing so from the owner.

However, due to the age of these walls, often time no one knows who the owner is and furthermore, naturally the wall often forms the boundary between private and public land, making it further difficult to identify the owner. What then can and should the Council do?

As mentioned above, s.77 allows the Magistrates’ Court to make an order requiring the owner to carry our certain works or demolish the structure. Therefore, if the owner cannot be identified, an order under s.77 cannot be made. Furthermore, if such an order were to be made and the Council were to carry out the works, the Council would not be able to recover the costs of the works as the owner is unknown, and this would mean the public purse has to cover these costs.

Therefore, what can and should the Council do when a wall with an unknown owner becomes dangerous?

Under s.78 of the Building Act 1984 if a structure is in such a state as to be dangerous such that immediate action is necessary to remove the danger, the Council may take such steps as may be necessary to remove the danger. This then enables the Council to carry out the works without the need to apply to the Court. Though, if the owner is unknown, the Council will not be able to recover the costs of the works and instead, the burden will fall on council tax paying residents. In situations where the wall forms the boundary between public and private land, many might be of the view that it isn’t a good use of public funds to pay to repair a wall which is clearly benefiting a private individual, even if it’s not completely clear that that individual actually owns the wall. Others might be of the view that because the wall forms a boundary between public and private land, there is a clear public benefit in the wall being repaired and consequently the Council should cover the costs of repair. Furthermore, some might also argue that the risk of injury to members of the public should the wall collapse, is a further reason for the Council to undertake the repairs, even if there is no possibility of recovering costs.

It is therefore important to consider the wording of the statute. Both s.77 and s.78 of the Building Act 1984 create powers instead of imposing a duty. That is, these sections allow the Council to carry out works or to apply to the Magistrates’ Court for an order in relation to a dangerous structure, but they do not require the Council to do so. This is because both sections use the word ‘may’, that is, the Council may apply to the Court or the Council may carry out works. Neither s.77 nor s.78 state that the Council shall or must apply to the Court or carry out works.

It is further interesting to know that public authorities do not owe a duty of care, at common law, simply because they have statutory powers or duties, even if, were they to exercise their statutory functions, they could prevent a person from being injured (see Poole BC v GN [2019] UKSC 25). Public authorities, like private individuals, are generally not under a duty of care to prevent the occurrence of harm (see DFX (A Protected Party) v Coventry City Council [2021] EWHC 1382 (QB)).

Therefore, as the Building Act 1984 does not require the Council to take any action in respect of dangerous walls, and as case law had found that public authorities do not owe a duty of care simply because they have statutory powers or duties, even if, were they to exercise their statutory functions, they could prevent a person from being injured, in situations were the owner of a dangerous wall cannot be identified the Council is not required to take any action.

The Council could choose to exercise its powers, though equally, the Council, could take no action at all. In situations where the owner of a dangerous structure is not known, s.94 of the Building Act 1984 provides that a notice can be served by addressing it to the owner of the structure and attaching it to a conspicuous part of the structure.

Attaching said notice to any dangerous walls in the Council’s area, may then help to identify the owner so that the necessary works can be carried out.