Murky complications of commissioning

A can of worms in a hornet’s nest and each of the worms is about to open their very own Pandora’s Box.

This was what I thought when the DfE said it would limit outsourcing opportunities for the delivery of children’s services to not-for-profit providers only.

Since then, it’s become clear that the regulations to effect this may be murkier than some people expected:

[R]egulations will not prevent an otherwise profit-making company from setting up a separate non-profit making subsidiary to enable them to undertake such functions.

On the other side of the coin, Labour are saying they will reserve public service contracts for social enterprises using new EU procurement laws and the principles Social Value Act of 2013.

But both of these scenarios are actually the same: the use (and abuse) of commissioning and procurement to reach a desired outcome. (See Toby Blume’s excellent posts on the Big Society Network and the National Citizen Service to see two recent examples.)

I’m afraid that, as commissioning and procurement currently work, anything that’s done to specify a certain type of provider to provide a service can be used (exploited?) to get exactly the opposite type of provider to provide the same service.

If you want a “not-for-profit” company to deliver a service, it’s perfectly possible for a private company to establish appropriate governance arrangements to appear as a “not-for-profit”. Similarly, it’s perfectly possible for a “not-for-profit” organisation to have governance arrangements such that it has a “for-profit” trading arm. These options don’t even include the extra dimensions social enterprises add, with their “for-profit” / social purpose duality. (And, whilst we’re at it, what, actually, is “profit”?)

Commissioning and procurement is a murky business.

For me, there are two real issues raised by all of this.

The first is that the “public is good, private is bad” dichotomy is truly unhelpful when it comes to debating how best to deliver public services. I mean, Julian Le Grand was exploring knights and knaves (pdf) back in 1995, quite aside from the amount of literature that work was built on and which has been written since

The second is that commissioning and procurement are processes that are driven by humans. As soon as you introduce human agency into a process it doesn’t matter how well the rules are written: the pesky human will find a way of using those rules to suit the ends they desire.

The primary issue, therefore, is understanding what is motivating people to act as they are. Questions of public/private providers and commissioning and procurement rules are secondary.






Remarkable commissioning decision from the DfE

An evaluation (pdf) on the outsourcing of some parts of children’s services ran to 224 pages – a number which says something about the complexity of public services and how they are arranged.

At the time I tweeted the following associated observations:

Since then, the Department for Education has said it will limit such outsourcing opportunities to not-for-profit providers only. Labour is also making very similar noises with regard to DWP’s Work Programme.

If true, this is remarkable.

As others have pointed out, previous governments have said they would do something similar and that this hasn’t always happened (see here and here). But I don’t think I recall a central government department so clearly saying it will specify what type of organisation will provide a service at this sort of scale.

It offers up all sorts of interesting implications as well.

By “interesting”, I of course mean someone has put a can of worms in a hornet’s nest and each of the worms is about to open their very own Pandora’s Box.

Here are a few quick thoughts:

  • How, exactly, can government effect this? We often hear about procurement rules and regulations that ensure “open and fair” competition for public services, so what magical levers will government now use or create?
  • Even if central government figures it out, how will they support their local government commissioning and procurement colleagues to put nearly 30 years of risk-averse, process-led ‘commissioning’ behind them?
  • What, exactly, is a not-for-profit organisation?
  • How long will it be before for-profit providers (G4S, Serco, A4E etc.) issue legal challenges about unfair competition rules?
  • If such limitations can be imposed in children’s services, why not in health services, social care and employment provision? We knew there was never any overarching strategy to public service reform from the coalition (whatever their Open Public Services White Paper said) but DfE’s move, being so completely at odds with what the NHS and DWP are currently doing through their own reforms, drives a coach and horses through the space any strategy might have existed.

It’s very exciting for people like me who have gone on about how existing commissioning levers can be used to level the playing field for smaller, particularly voluntary sector organisations. Admittedly, people like me tend to need to get out more, but we’re in for some fun and games if DfE and/or Labour really try to do what they say they will.

Cabinet Office launches Commissioning Academy

After highlighting some of the best resources available on commissioning and procurement last week, it would be silly not to mention the new Commissioning Academy, launched by the Cabinet Office at the end of last week.

The Commissioning Academy will:

bring commissioners from different parts of the public sector together to learn from the example of the most successful commissioning organisations. It will develop a cadre of professionals who are progressive in their outlook on how the public sector uses the resources available.

The programme aims to help commissioners deliver more efficient and effective public services. Success will mean commissioners embracing new and innovative forms of delivery, better outcomes for citizens and better value for money.

A brochure for the Commissioning Academy is here and a framework document, which summarises what commissioning means to the Commissioning Academy, is here.

You can find the Commissioning Academy on Twitter @CommissioningAc.

The most useful resources on commissioning and procurement

Commissioning, procurement and how accessible public sector contract opportunities are to voluntary sector organisations will always be a considerable issue. It’s one that isn’t short of people’s time, thoughts and efforts – either in the past, present or future.

Such efforts tend to fall into one of 3 categories:

  1. Resources that support voluntary sector organisations to be better at responding to procurement / tendering opportunities (toolkits, masterclasses, training courses etc.)
  2. Resources that support commissioners to make procurement and tendering more accessible for voluntary sector organisations (example policies, legislative or regulatory incentives etc.)
  3. Examples of where efforts have worked in practice (case studies, events etc.)

It wouldn’t be an exaggeration to say there are hundreds of publications dedicated to this topic. This post very briefly notes some of the most useful resources on commissioning and procurement that already exist or are on their way in each of the above, particularly for disabled people’s user-led organisations.

Resources that support voluntary sector organisations / DPULOs

Resources that support commissioners

Practical case studies

By definition, this post hasn’t tried to capture all resources on commissioning and procurement. However, if there are particularly good resources that aren’t included in the above please do let me know in the comments below or via Twitter (@rich_w).

Local #Healthwatch and #dpulo – useful mapping spreadsheet

I wrote a few weeks ago about the big opportunity that I think Healthwatch presents for Disabled People’s User-Led Organisations (DPULOs).

In particular, there are 3 things I think DPULOs should be excited by when it comes to local Healthwatch:

  1. DPULOs can be the local HealthWatch. Many local authorities are starting to tender contracts for the local HW functions, and DPULOs can bid to deliver these contracts
  2. DPULOs can be part of the local HealthWatch. If they don’t want to bid directly for the contract, they can either partner formally with those who do, or perhaps deliver parts of the contract as subcontractors
  3. DPULOs can ensure the voice of disabled people is represented on local HealthWatch through being involved in its work. They can do this by finding out who is or will be delivering the local HealthWatch and sharing how they can support them in their work and engaging with disabled people – through partnership working, information sharing, direct engagement work etc.

Because I’m that kind of person, I’ve created a spreadsheet of all local authority areas, whether they have started the contracting process for their local Healthwatch and what the (approximate) value of the contract might be. This is embedded below, and I encourage anyone who has any info or is interested in this type of thing to add any updates they’re aware of (or make corrections to the info currently there).

I’ll add to the spreadsheet as and when I get more info, so feel free to keep checking back.

DPULOs Making A Difference: working with commissioners – be a case study #dpulo

The Strengthening DPULOs programme is bringing together a collection of case studies exploring how DPULOs and commissioners have worked well together for the benefit of disabled people in their communities.

A full summary of this work is outlined at the end of this post.

The collection of case studies will show commissioners how practically DPULOs can work with them, in anticipation that it will encourage them to start, or continue, working closely with DPULOs in their area.

Living Options Devon will be coordinating this work on behalf of the Strengthening DPULOs programme.

How you can get involved

We are looking for a range of case study examples for the collection. As the coordinating DPULO, Living Options Devon will work with the DPULOs who are contributing case studies to support their effective contribution.

The Strengthening DPULOs programme have agreed to pay each DPULO who contributes a case study for one day’s work at £340 per day.

What is needed

There is a lot of good work happening between DPULOs and commissioners. We are looking for case studies that showcase a range of examples of good practice. This means that unfortunately we won’t be able to include every DPULO who expresses an interest.

A list of case study examples which we would like the collection to include has been put together, in coproduction with DPULOs, commissioners and other interested stakeholders – these are outlined below.  We would like to hear from you if your DPULO could provide us with a case study which fits any of these examples, though we are particularly interested in the examples which are in italics.

  • Commissioners reserving contracts for DPULOs using existing legislation and regulations (i.e. article 19 of the EU Procurement Directive Significant contracts being issued for voice/engagement-related work
  • Strategic partnerships / secondments between DPULOs and commissioners
  • Commissioners working with DPULOs to support their move into new service delivery areas or taking over a failing service
  • Effective engagement between DPULOs and emerging Health & Wellbeing Boards and local HealthWatch organisations
  • A commissioner using a Section 106 agreement to benefit / establish a ULO
  • How DPULOs and commissioners have worked together to deliver value for money at a time of austerity
  • How commissioners and DPULOs have worked constructively together without compromising independence or voice
  • A DPULO working with a commissioner to coproduce a tender specification
  • How a DPULO and commissioner have worked together to address TUPE issues
  • An example of a DPULO and commissioner working effectively together in employment, education or transport

If you would be interested in sharing your experiences and learning through a case study so that other DPULOs and commissioners can benefit please use the contact details below with a brief explanation of:

  • The practicalities of the relationship between your DPULO and the commissioner
  • If the relationship with your commissioner relates to one of the examples above please identify which and explain
  • A brief summary of the successful results of this relationship.

Please email your reply to Kelly Mavro at Living Options – – by 10 December 2012.

If you have any questions, please do not hesitate to contact Kelly via email or phone 01392 459222.

Please share this information with any other people/networks who you think might be interested.

Preferential treatment for #dpulo (and others) in procurement – good to see

It was great to read this in the Liverpool Echo:

Liverpool council will adopt the pioneering approach when it evaluates bids for contracts.

The aim is to put extra emphasis on using socially responsible contractors and suppliers when procuring the £270m budget for buying in goods and services from third parties.

The council said value for money and the ability of a company to deliver the contract will still be the most important factors.

But additional consideration will now be given to organisations with a smaller gap between the highest and lowest paid staff (pay multiple).

Social enterprises which plough their profits back in to developing the business and firms which can demonstrate clear local benefits will also be favoured.

That is, Liverpool Council has said that it will actively prefer providers that add social value to the city of Liverpool in the way they deliver services.

This is good news. I’ve written a lot about the added value that organisations like DPULOs, mutuals, social enterprises and voluntary sector organisations bring, and it’s great to see a Council formally recognise this in its procurement process.

Way to go, Liverpool. Let’s see lots of your local authority colleagues follow suit!

(If anyone has any other examples of this type of thing, please let me know.)

DPULOs Making a Difference: Working with commissioners – Expression of Interest


Commissioners working in all areas of the public sector – social care, health, children’s services, employment, justice system, education etc. – will be vital to the future strength and sustainability of Disabled People’s User-Led Organisations.

Yet the experience DPULOs have of commissioners – and that commissioners have of DPULOs – can be very varied. This gives rise to a wide variety of outcomes for DPULOs themselves and the work they do: from thriving and growing year on year to struggling to survive from one month to the next.

Great examples exist of where DPULOs and commissioners have worked well together for the benefit of disabled people in their communities. These examples include innovative use of commissioning and procurement, as well as through softer approaches such as partnerships and relationships. Such “working well” leads to:

  • The voice of disabled people being captured and represented in a local area
  • Innovative and effective service delivery by DPULOs.

However, these examples aren’t necessarily well known – to either DPULOs or commissioners. Furthermore, the factors underpinning why this work happens in some places and not in others isn’t as well understood as it should be.

A collection of case studies

Building on and extending work that others have done (such as SCIE and ripfa) the Strengthening DPULOs Programme is commissioning a collection of case studies to address these gaps. The collection will show how DPULOs and commissioners have worked successfully together and the reasons for this.

The collection will cover:

  • Examples of how commissioners and DPULOs have worked together
  • The practicalities of how the relationship worked
  • What the successful results were of this relationship
  • The key factors that enabled this success to happen
  • What general lessons we can learn from DPULOs and commissioners working successfully together.

Case studies could potentially include examples of:

  • Commissioners reserving contracts for DPULOs using existing legislation and regulations
  • Significant contracts being issued for voice/engagement-related work
  • How DPULOs and commissioners have worked together to deliver value for money at a time of austerity
  • Strategic partnerships between DPULOs and commissioners
  • Commissioners working with DPULOs to support their move into new service delivery areas
  • Effective engagement between DPULOs and emerging Health & Wellbeing Boards and local HealthWatch organisations.

Complementary work

This collection of case studies would complement other work we are doing on the role of commissioners in the sustainability of DPULOs. This other work includes:

  • Promoting DPULOs through funding and procurement – targeted work with local authority commissioners in a particular region
  • A piece of qualitative research with commissioners to understand their views and perspectives of DPULOs, and the barriers that may affect commissioners being able to buy the services of DPULOs.


The collection of case studies would be widely disseminated through the DPULO network associated with the Strengthening DPULOs Programme and all its communications channels, including the ODI website, monthly email and social media.

We would also wish to disseminate this report to each local authority in the country, as well as relevant representative bodies (such as the Local Government Association). A full stakeholder map will be developed as part of this work; any suggestions that people have of networks we should share this work through would be welcome.

The collection will also inform the work of the Strengthening DPULOs Programme and others on how best to support DPULOs in their work and relationships with commissioners.

How you can get involved

The collection of case studies will be coordinated and written by a DPULO. Support will also go directly to the DPULOs whose work is being profiled in order to support their effective contribution.

The role of the coordinating DPULO will be to:

  • Scope and agree potential DPULO case studies
  • Produce a case study template
  • Liaise with each chosen DPULO in writing their case study
  • Contribute to writing an introduction and conclusion for the collection
  • Draft the final collection
  • Support development of a stakeholder map for dissemination.

We anticipate this work will take approximately 10-15 days in total.

Expressions of Interest

We would like DPULOs to submit a brief (no more than 3 sides A4) Expression of Interest to coordinate this collection of work.

Your Expression of Interest should cover:

  • The DPULO’s knowledge, understanding and expertise regarding commissioners and commissioning/procurement
  • The DPULO’s knowledge and understanding of the barriers DPULOs face when it comes to commissioning and procurement
  • Demonstrable evidence of the DPULO’s networks and contacts with other DPULOs
  • The DPULO’s experience in project management
  • The DPULO’s experience in delivering high quality written materials in relatively short timescales
  • The DPULO’s capacity to demonstrate the ability to deliver this work within the next 2-3 months
  • Your proposed daily rate for this work.

This Expression of Interest will be considered and marked by the Strengthening DPULOs Programme team, and the coordinating DPULO will be chosen solely on the basis of the information provided. The work will be resourced through a grant to the coordinating DPULO.

Please submit your Expression of Interest to by 5pm on Wednesday 25 April 2012.

If you have any questions, please get in touch with Rich above. Similarly, if you know someone who may be interested, please pass this information on to them.

March 2012

Enabling #dpulo contributions through commissioning

I’m very sorry for being late on this post – time has just got the better of me.

Nevertheless, I’m attending a meeting tomorrow where we’ll be talking about how Disabled People’s User-Led Organisations can be better served in commissioning / tendering / procurement processes, and what some of the barriers to this are.

Fortunately, this is the start of a conversation rather than the end of one, so I’ll be coming back to people with further requests for input etc. over the coming weeks.

In the meantime, below are thoughts on key facilitators that are under the control of commissioners to positively shape and create such a level playing field for DPULOs at:

  • A strategic (commissioning-based) level
  • A more practical (procurement-based) level

I’ve also included information on the truly brilliant bit of EU legislation known as Article 19.

However, we start with feedback from very kind people who contributed thoughts via various social media outlets:

Initial ideas from people off Twitter and beyond

  • Longer lead in times for commissioning
  • Easier application process
  • DPULO tendering and commissioning network with range of skill-specific consortia
  • Allow for core funding. Permit core funding in budget guidelines
  • Representative support and help for DPULOs
  • A national protocol for commissioners when working with disabled people’s organisations
  • Remove restrictive financial penalties e.g large bonds, non-performance penalties & difficult payment structures
  • Reduce red tape (or at least make it proportionate)
  • Include social value tests to balance Value for Money criteria e.g. involvement of ‘client and customer group’ in governance and staffing of the organisation. (Or, at least, have suitable balance between the two in tender specifications)

A more general point that a few people made about commissioning was that involving users at every step of the way through coproduction should be fundamental to the process; indeed, some suggested it should be compulsory.

Facilitators at a commissioning level

Commissioners can develop and implement policies that:

  • Stimulate the participation of public service users by encouraging the development of local groups and promoting the use of voluntary sector infrastructure resources to include and benefit service user groups
  • Work in dynamic partnership with individuals, communities and their representatives – such as DPULOs – to define, develop and deliver high quality services
  • Foster a level playing field for user-led and carer’s organisations to compete in any tendering process
  • Look to commission specifically from local providers
  • Look to commission specifically from voluntary sector providers
  • Recognise the added value that DPULOs can offer
  • Recognise the wider role of DPULOs when carrying out their duty to promote disabled people’s equality especially in drawing up and implementing local equality plans
  • Ensure support enables Independent Living and embodies the ethos of choice, control and for all people to participate as equal citizens in society
  • Ensure that local contracting procedures do not discriminate unfairly against small / new / DPULOs
  • Offer Contracts, not Service Level Agreements, in order to give potential DPULO providers flexibility over service delivery
  • Offer 3- or 5-year funding arrangements, rather than year on year, to support service improvement and provider stability.

Article 19 and reserving contracts

Article 19 regulations of the Procurement Directive 2004/18/EC form a part of European legislation that allows organisations to reserve public contracts for supported businesses, meaning it is permitted to invite only supported businesses to bid for the work.  A supported business employs disabled people as over 50% of its workforce. For contracts under £144k, it is therefore allowable to simply invite a supported business – such as a local DPULO – to bid for a contract or offer them the chance to match the best price.

Awareness of Article 19 is very low, so sharing information about it and ensuring commissioners are aware of it would be very useful. (More info on it is available here and here).

Facilitators at a procurement level

There are a number of practical things procurement teams can do to ensure procurement processes do not adversely impact DPULOs. These are as follows:

  • Ensure DPULOs are given adequate time to respond to tenders
  • Consider using a restricted or selective tender list, or a ‘single source’ approach to target organisations controlled by users (particularly in cases of extending existing arrangements)
  • Ensure DPULOs are specifically made aware of potential services particularly noted under the areas they typically work in (i.e. Information and advice, Advocacy and peer support, Support in using Direct Payments (e.g. Information, Advice and Guidance (IAG), payroll, brokerage, support planning, Disability equality training, Support for the implementation of the Disability Equality Duty)
  • Ensure organisations who have not bid for contracts before are particularly aware of new opportunities
  • Ensure procurement portals are accessible
  • Ensure tender documents are accessible and proportionate to the contract in question
  • Ensure that the value for money components of the specification take account of the added value often contributed by local organisations representing potentially eligible users. This should particularly be the case in tender marking scheme (where such components of ‘added value’ typically form only 5% of judging criteria)
  • Recognise framework arrangements so that large and smaller organisations can submit joint tenders. Larger organisations may be able to bring economies of scale to the contract while smaller organisations may be better placed to provide specialist services.
  • Observe good practice during the application process through ensuring:
    • Each tender pack contains an evaluation and a complaints form
    • That tender packs are available in a range of accessible formats
    • Guidance documents are provided that cover equal opportunities, partnership working and how to complete the application form
    • All materials relating to a specific tender process are in one place and easy to access
    • Monitoring systems are in place to record the number of smaller organisations bidding for and securing contracts.

To support the development of an inclusive commissioning approach as set out above, commissioners should be encouraged to consider the following to shape their commissioning policy in the first place:

  • Commissioning training from local organisations for commissioners themselves
  • Employing or engaging commissioning experts from the voluntary sector or local SMEs to provide specialist advice and feedback on relevant strategies
  • Mainstream equality and access issues through the commissioning cycle
  • Work with DPULOs to decide how best to commission local support services. Whatever model is developed, the involvement of service users and carers in the design and delivery of services is of vital importance and will encourage better quality support services.

All further thoughts and comments gratefully received.

(Note: The above has been developed and extended from work I’ve done with Social Care Institute for Excellent and research in practice for adults.)

£10m Investment and Contract Readiness Fund = #win

In a recent post about Big Beasts versus Social Enterprises, I noted that creating the conditions to ensure that social enterprises and voluntary and community sector organisations can play a part in the provision of public services would require a practical support programme and commissioning strategy, supported by the government.

In July this year – and I’m not quite sure how I missed it – the Cabinet Office announced a £10m fund to do precisely that: the Investment and Contract Readiness Fund.

The focus seems to be on developing the skills and infrastructure of VCS organisations, rather than, say, levelling the playing field in actual procurement processes (preferential treatment for VCS providers, anyone?).

One further cautionary note I’d highlight is that I hope infrastructure organisations don’t get the bulk of the funding in the hope it will have a “trickle-down” effect to frontline organisations. Though a national delivery partner is a very good idea (an NCVO, say), having a multiplicity of local delivery partners would dilute, in my view, the potential impact of the fund. (Anyway, there’s always the Transforming Local Infrastructure Fund of £30m for them.)

Nevertheless, the Investment and Contract Readiness Fund is a welcome boost and one that I think VCS organisations – including disabled people’s user-led organisations – will benefit from.