UNIVERSITY HOSPITALS OF MORECAMBE BAY NHS FOUNDATION TRUST

TRUST BOARD MEETING

To be held on 25 January 2012 Agenda No 9b

Report of: / Records Management – Procurement Value for Money and Legal Feedback
Paper Prepared by: / Tim Bennett – Director of Finance
Date of Paper: / 16/01/12
Subject: / EDMS - OJEU Legal Options
Care Quality Commission Standards: / N/A
Assurance Framework Link: / Strategic Objective
Principal Objective
Background Papers:
Item Considered at Earlier Committees
(pls detail mtgs):
Patient & Public Involvement:
In case of query, please contact: / Tim Bennett
Purpose of Paper:
To provide the Board with a summary of the potential procurement options and feedback on the legal view of those options.
Key issues:
1. Awareness of the procurement options and the independent legal advice
2. Legal recommendation
3. Approval to start the procurement process
The Board is asked to:
1.  Ratify and approve the start of the OJEU procurement option

AGENDA ITEM NO 9b

TRUST BOARD MEETING: 25 JANUARY 2012

Records Management Procurement Options & Legal Feedback

Background

Following the Board meeting on 14 December 2011, it was agreed that the strategic solution to records management is having an EDMS service.

At the meeting the Board requested independent legal feedback on the two procurement options with a brief summary of the legal advice that had to be sought on each option.

The purpose of this paper is to provide that information to the Board with a view to seeking approval to start the procurement process.

Procurement Options

There are two procurement options open to the Trust:-

1)  NHS Additional Supply Capacity and Capability (ASCC) programme, which was part of the National IT project

2)  OJEU Route

Legal Feedback

Advice was sought from the specialist public procurement legal advisors from the law firm Ward Hadaway. Ward Hadaway strongly advised against negotiating directly with CSC using the National IT project framework. Their view was that the Trust would be open to successful legal challenges by non-framework suppliers, on the grounds that it infringes the law of public procurement. The consequences of which could expose the Trust to long delays, potential punitive fines as well as damages to unsuccessful bidders. The basis of their advice is based on the two following points:-

1.  There was no provision for the purchase of an EDMS managed service in the original terms of the National IT programme which could be challenged on the grounds that the Trust has not complied with the Public Contract Regulations and as such is using the framework agreement improperly, in a way as to prevent / restrict competition.

2.  There is also risk of a challenge on the basis of the use of the framework agreement on the grounds that the original call for competition led to the original award of contract to Accenture and that a new call for competition should have taken place instead of the novation of the contract from Accenture to CSC.

On the basis of the above summary of the legal advice received, it is recommended that the Trust starts an OJEU procurement to achieve its strategic vision of having an EDMS service.

The OJEU procurement route would fully satisfy the Trust’s statutory legal obligations as detailed in the Public Contract Regulations 2006, as this route carries the lowest risk in procurement terms to the Trust.

The Board is asked to ratify and approve the start of the OJEU procurement process.