Procurement Bill [HL]

Written evidence submitted by the Women’s Resource Centre (WRC) (PB25)

Written contribution to House of Commons Public Bill Committee on the Procurement Bill

1. About us

1.1. Women’s Resource Centre (WRC) is the leading national umbrella organisation for the women’s voluntary and community sector (VCS) in England. Women’s organisations make up approximately 7% of all charities. Organisations we represent deliver important and often life-saving services to marginalised and vulnerable women. Services range from counselling, trauma-informed therapy, emergency refuge accommodation, art and youth projects, training and skills workshops, advice and empowerment projects. While some organisations command bigger budgets and are in a better position to vie for bigger public sector contracts, most are not. They are smaller, grassroots organisations that are better places to reach certain groups of women. Many of these serve Black and minoritised women. Over two-thirds of women’s organisations operate on an annual income of less than £300,000. Nearly half have an income of less than £100,000. (Life-Changing and Life-Saving, Funding for the women’s sector, p.11.)

1.2 The burdens on the vast majority of women’s organisations to access funding for central costs are huge relative to their capacity. However, they are a vital part of the civil society ecosystem, keeping women and their children from destitution and providing the material and emotional support for them to thrive in the future. Their outcomes, even just in terms of savings to the health service, are significantly greater than their current levels of funding. On average, over five years, for every £1 invested in women’s services, between £5 and £11 worth of social value is generated for women, their families and the State." (Hidden Value: Demonstrating the extraordinary impact of women’s voluntary and community organisations, p6.)

2. Funding landscape

2.1 Grant funding, specifically for women, is drying up: the Tampon Tax no longer exists, the National Lottery’s Women and Girls’ Initiative has come to an end with no plans to continue it in the near future, EU funding pots have become inaccessible, the Home Office has said they won’t be setting up an Emergency Fund for violence against women and girls (VAWG) services that are being disproportionately impacted by the cost-of-living crisis, increased demand and waiting lists. Whatever grant funding does become available i t is often project based, only for new initiatives, short-term, reactive and peace-meal, despite the fact that VAWG, for example, is a constant threat and reality in women’s lives.

2.2 Due to the fallout from the pandemic and cost-of-living crisis, more and more women’s organisations are now dealing with women who have complex needs. They are also plugging gaps in statutory services, which was partially recognis ed during the pandemic, but has not been acknowledged or covered by funders since then. They are oversubscribed and underfunded. However, over the last decades, the traditional and more simplified grant-making model has been reduced in favour of more arduous procurement and commissioning processes. This may provide opportunities for some of the larger women’s organisations in particular, but even then, the odds are stacked against them. Women’s organisations tell us all the time that the process is still too complex and competitive for them to engage effectively.

2.3 Worryingly, we are also seeing a new phenomenon of burdensome procurement processes to access what are essentially government grants e.g. the Home Office VAWG Specialist and Support Services funding stream. This extra bureaucracy is not an efficient use of time and money.

2.4 The ‘marketplace’ mentality and language that accompanies it, makes it clear that the procurement process is not designed with the voluntary and community sector in mind. The idea of having many competing bids for a life-saving service only serves to lower costs, which, in turn, only serves to keep staff wages low and, which could lead to ‘corner-cutting’. Women and girls deserve better than the threadbare basics. This is why we want to see this Bill include requirements specifically with the VCS is mind.

2.5 There are impossibly high barriers to get ‘contract ready’. These include the requirement to get specific values of insurance that may be disproportionate to the size and capacity of the organisation; c umbersome bidding processes exclude many charities who do not have in-house fundraising expertise ; f unding contracts from governments and Local Authorities sometimes requiring pre-financing for match funding , which is hugely challenging for small organisations that don’t have reserves and this is increasingly the norm , which weeds out many ‘ by and for ’ sector organisations. Some of our members have been in online ‘marketplaces’ where 5 00 representatives from org anisation s are vying for grants or cont r acts that will be awarded to a very limited number of organisations . They report uneven power relations where government and local authorities can remove grants or contracts, not use exemptions or extensions on their contracts, but expect org anisation s to sign everything away for a relatively small contract . Many women’s sector voluntary organisations do not have the resou rces to hire specialists to put G DPR and DPIA requirements into action, so this process can often take many months. To bid for government contacts there is often an expectation to use t he government - backed Cyber Essentials Plus accreditation , which also costs time and money. Access to legal advice to look over contracts is an added expense that many organisations cannot afford. There is also a lack of clarity regarding VAT requirements in small value contracts for services.

2.6 Services that benefit individuals or groups of people would benefit from minimum pricing levels to stop the ‘rac e to the bottom’, and which incentivis es generic service provision that lacks the expertise and specialism of ‘led by and for’ organisations . The Procurement Bill has the opportunity to take these kinds of bolder steps, in order to stem the tide of increasingly hollowed-out service provision.

2.7 When organisations are competing for continuation after the end of an existing process, their expertise and information informs the contract that is then put out again for tender in the open market (through the use of what would normally be considered ‘commercially-sensitive data’). Everyone would agree that data sharing is good if it’s for the benefit of delivering better services. But using it to actively promote a bigger marketplace of providers to the detriment of specialist services goes against the interests of the ‘led by and for’ voluntary and community sector.

2.8 Some further issues that the Procurement Bill as it currently stands does not address: i f contracts cannot ensure full-cost recovery, how is the long-term sustainability of the sector being maintained? ; w e get feedback that procurement for grants is often launched in the summer and Christmas when voluntary sector capacity is at its lowest or redundancy notices need to be issued in late December ; i f feedback on failed bids is never given, nor transparency on costings that won never published, how can VCS organisations learn from them and services improve on more than just cost criteria? If we do not know who is making first-round decisions, how do we know they are qualified to really assess the bid?

2.9 For all these reasons, we think there ought to be special provisions in the Procurement Bill for social justice/benefit service organisations. This submission will therefore aim to make two points: the first is to increase the scope and leeway for public bodies to be more flexible with regards to their funding approaches towards the VCS to include, for example, grants programmes and light touch contracts as standard, in acknowledgement of their different status to businesses; and secondly, to ensure that, for those organisations and services that do enter the procurement process, the Bill includes more specifications that cut the red tape for VCS organisations that are, by their equity-led nature, intrinsically more suited to deliver certain kinds of services.

2.10 One of the Procurement Bill’s stated aims of making it easier for the voluntary and community sector (VCS) to engage in the procurement process would be strengthened with some further amendments. Tailoring a process that is geared up for businesses to VCS organisations will never be a perfect fit. But some things, like splitting bigger contracts into lots is welcomed. We would like to highlight some other areas that could be provide better opportunities for a more level playing field.

3. Procurement thresholds

3.1 Part 6, Below Threshold Contracts, 84 (3a and b) specifies the thresholds for which procurement should proceed. In light of inflation, these should be increased for voluntary and community sector organisations that are delivering services beneficial to individuals and communities.

4. Social Value

4.1. Part 2, Principles and Objectives 11(1) states that a contracting authority must have regard to the importance of- (a) delivering value for money and (b) maximising public benefit. The Committee must recognise that these are often at odds. In practice, and in light of tight budgets, the former usually wins out over the latter. Therefore, in line with the Public Services (Social Value) Act, 2013, and in keeping with the greater emphasis on social value in the government’s levelling up agenda, we would like to see the term ‘social value,’ included here, with more weight attributed to it than currently stands. This has legal precedence and is a term familiar to many VCS organisations, giving them more scope to demonstrate their impact favourably in bids. While the Bill refers to the National Procurement Policy Statement (NPPS), there is a missed opportunity here to specify and amplify strategic, non-financial priorities in the procurement process.

4.2 At the same time, it is also true that increased weighting of social value usually means doing more for less. Therefore, alongside this amendment, minimum pricing levels should be introduced for certain budget costings, in negotiation with the relevant specialist organisations.

4.3 Specialist organisations that are ‘led by and for’ the women they support are best placed to reach and understand the needs of more marginalised groups . This expertise and holistic approach to supporting women and girls cannot be replicated by generic organisations. Procurement processes simply invite generic services in to undermine these specialist organisations, risking their future sustainability. The money spent on the whole procurement process is not justified. This is why specialist services like VAWG services should be funded through grants programmes instead, co-designed with women’s and specialist ‘by and for’ Black and minoritised VAWG organisations. Competitive tendering is not appropriate and risks the entire financial viability of the sector . We would, therefore, like to see the Procurement Bill acknowledge the fact that funders need to carefully assess and justify the way they fund certain services, and that grant-making pro grammes should be the standard model for certain services , unless explicitly justified .

4.4 Therefore, we wholeheartedly support the tabled New Clause 16 amendment by the Shadow Cabinet Office Minister, Florence Eshalomi MP, which refers specifically to the ‘Procurement of support services for victims of violence against women and girls’.

5. Fair and unfair advantage

5.1 Part 2, Principles and Objectives 11(2) states that, in carrying out a procurement, a contracting authority must treat suppliers the same unless a difference between the suppliers justifies different treatment. (3) If a contracting authority considers that different treatment is justified in a particular case, the authority must take all reasonable steps to ensure it does not put a supplier at an unfair advantage or disadvantage. We think these statements are also at odds. If a local authority decided that an equity-led, women-only service was the best kind of provider to deliver a women’s refuge or rape crisis service – for which there is evidence for in terms of social value, expertise and women’s access and outcomes – how does it provide different treatment to enable this at the same time as not ‘unfairly disadvantaging’ generic organisations that are vying to provide a ‘similar’ service, such as a housing association? Clarification on what an ‘unfair advantage or disadvantage’ means in this context would be valuable here, as we know that public bodies have been scared to commission women-only services for fear of contravening equality law.

6. Equality Law

6.1 Part 3, Award of Public Contract and Procedures, 15(1) states that, before publishing a tender notice in respect of a public contract, a contracting authority may engage with suppliers and other persons for the purpose of- (a) developing the authority’s specifications and approach to the procurement; (b) designing a procedure, conditions of participation or award criteria; (c) preparing the tender notice and associated tender documents; (d) identifying suppliers that may be able to supply the goods, services or works required; (e) identifying likely contractual terms; (f) building capacity among suppliers in relation to the contract being awarded. We welcome this attempt to promote a co-design of services and criteria, something that the women’s sector in particular have been lobbying for for some time. We think that this can be strengthened further by referencing the importance of incorporating the Public Sector Equality Duty in the formation of service design.

6.2 There are mixed experiences of Equality Impact Assessments (EIAs) , the general view being that these are tick box exercises, which do not consider how structural inequalities are perpetuated. Some organisations have told us that they have only seen Equality Impact Assessments within a grants programme model, and that you have to specifically ask for them in a commissioning process. Including the necessity of co-production of EIAs in the procurement process will focus minds and ensure that equalities considerations drive the procurement process and criteria. Mentioning this in the Procurement Bill will also give many VCS organisations more leverage to put forward stronger bids.

7. Light touch contracts

7.1 Chapter 2, Competitive Award, Award Criteria, 22(6) talks about light touch contracts. Women’s organisations work in many health-related fields: maternity, pregnancy and reproductive rights, as well as the many services under the VAWG (violence against women and girls) umbrella, such as trauma-informed therapy and counselling and emergency refuge accomodation that saves women’s lives and limits their exposure to physical and mental harm. We think that, as a secondary alternative to grant funding, the light touch regime (LTR) should be automatically applied to these kinds of services. We, therefore, recommend that the section on LTR includes stronger language than, "having regard to" when funders are evaluating the type of funding model to be used. Funders should be choosing grant programmes and the LTR "in the first instance" for services supplied for the benefit of individuals. If they are not chosen, funders should be obligated to justify their decision.

7.2 One women’s organisation told us that it still took one year to get themselves into a position to be able to apply through the LTR as it currently operates. If the whole point of LTR is to ease the burden on procuring certain (particularly health-related) services as opposed to commodities, then more work needs to be done to make the process more accessible to voluntary organisations.

7.3 The L ondon VAWG C onsortium and many other women’s and specialist ‘ by and for ’ BME organisations took part in the recent May’s Office for Policing and Crime ( MOPAC ) Tier 1 "light-touch" procurement process for Safe Accommodation. The Lloyd’s Foundation report highlights the problems that organisations had with this , which this Committee should be aware of when scrutin i sing LTR within the procurement framework in this Bill . The report highlights that fact that tendering for such services, even within a LTR, was unnecessary and a grant s programme would have made more sense – especially for small value contracts . It also mentions the complexity of the process, tight timeframes and uncertainty around funding criteria that contributed to barriers to access. We would like to see the legislation include wording that will help mitigate these barriers.

8. Exemptions

8.1 We think that the Procurement Bill can afford to be bolder in the thresholds for contracts specifically as they relate to services provided by the VCS. We understand the reluctance to differentiate too much between SMEs and VCS organisations because of the desire to promote ‘fair competition’, but the reality is that the situation for smaller VCS organisations now, and has, for a long time, been grossly unfair. This needs to be righted with a more proactive approach that entails placing less onus on smaller VCS organisations, in order to level the playing field. The fact that services are not run for profit should be subject to more favourable criteria than businesses anyway, especially when it comes to health and social care, where we have often seen a situation of rampant profiteering and perverse incentives. We think the Committee should consider widening the scope for exemptions and/or higher monetary thresholds for violence against women and girls (VAWG) services in particular, in order to encourage less onerous grant-funding.

8.2 The Procurement Bill misses the opportunity to promote even greater autonomy by local authorities to deliver services according to need and local knowledge/expertise. The often life-saving services delivered by women’s organisations wouldn’t immediately be included in the Schedule 5, Direct Award Justifications, (1)-(21). However, there may be scope under (15), (16), and (17) to widen out these criteria to include violence against women and girls (VAWG) services in particular. Usually, rape crisis counselling and emergency refuge provision is not seen as a serve ‘necessary to protect life’ like, for example, a paramedic service or a local emergency vaccination programme, but nevertheless, rape crisis centres and refuges do indeed protect women’s lives. This was widely recognised during the pandemic where services w ere finally seen as essential. User choice contracts are also only defined here in terms of an individual’s choice of service provision – but what about the overwhelming case for the desire of women to have women-only service provision, especially if they have experienced male violence? We would like to see this definition widened to include the needs of a collective of service users, rather than just an individual.

9. Technical ability

9.1 Part 6, Below Threshold Contracts 78(1) and (2) states that where a contracting authority invites the submission of tenders in relation to the award of a regulated below-threshold contract, the authority may not restrict the submission of tenders by reference to an assessment of a supplier’s suitability to perform the contract, which includes (a) their legal and financial capacity; or (b) their technical ability. We would benefit from some clarity around what ‘technical ability’ means, especially in relation to, for example, the ability for a generic organisation to meet the needs of minoritised women who have a special set of needs and expectations.

10. Proportionality

10.1 The development of specified online systems and portals to streamline the procurement process and ensure non-duplication of work sounds promising, but the level of information required in the first place needs to be cognisant of the fact that smaller VCS organisations do not have dedicated teams to do this work – often, it is CEOs who have to take this on. Our members often tell us that the sheer amount of information required in the procurement process is a major barrier to access. To ensure organisations are encouraged to apply, CEOs, who already have limited capacity and are managing a complex matrix of funding, need to be assured that the time invested in competing and navigating these process is proportionate to the grants or contacts value.

10.2 These portals are also set up primarily for the procurement of goods, rather than services that the women’s sector and most voluntary sector organisations provide. For example, they ask for ‘shipping port of origin’. Whilst portals have improved, t his is confusing and indicative of the fact that the whole system is geared up for commodities and, therefore, market-oriented. Portals should not operate on a ‘one-size fits all’ model.

10.3 Organisations have reported that they are offered adequate training on formats being used to ensure that they get the opportunity to understand and know the system . However, these systems should not be changed frequently , as this requires further training a nd does waste time and effort. M ost importantly , it might be best to adopt a uniform procurement format to a void having to learn different formats for different government agencies.

For more information about anything in this submission, please contact:

Kiran Dhami, Policy Manager

Women’s Resource Centre

kiran@wrc.org.uk

February 2023