Publication - FOI/EIR release

Temporary Legal Staff Framework correspondence: FOI release

Published: 21 March 2024
Directorate: Scottish Procurement and Property Directorate
Part of: Public sector, Work and skills
FOI reference: FOI/202400396440
Date received: 25 January 2024
Date responded: 22 February 2024

Information request and response under the Freedom of Information (Scotland) Act 2002

Information requested

Questions Relating to Tender Process

1.1. Please provide us with all correspondence which Scottish Ministers received from or sent to any tenderer relating to what fees, costs, prices or other charges should be included in Schedule 2.

1.2. Do the Scottish Ministers have any indication of what fees costs, prices or other charges were covered by the figures set out in each tenderer’s Schedule 2?

1.3. If so:
(a) did the Scottish Ministers accept any Schedule 2 which did not cover all fees, costs, prices and other charges, on the understanding that such costs, prices or other charges would be payable under the Contract in addition to the amounts specified in Schedule 2?
(b) what measures did the Scottish Ministers take to ensure that the pricing element of all tenders were evaluated on an equal basis?
(c) To what extent did Scottish Ministers take into account any such additional fees, costs, prices and other charges payable under the Contract, but not included in a Schedule 2, for the purposes of ranking suppliers under the Contract?

Questions Relating to Operation of Contract

1.4. Have all suppliers received only the charges set out in their Schedule 2 for services provided under the Contract?

1.5. If not, please detail all sums paid under the Contract by Scottish Ministers or other customers to suppliers which were not set out in the relevant Schedule 2. Please also provide reasons for Scottish Ministers agreeing to pay such additional sums despite the terms of the Contract and relevant tender terms and conditions.

1.6. Has any supplier under the Contract included costs other than the candidate’s salary in the section titled “Daily pay/wage rate (£) (excluding VAT)” in any completed Original Part B or Modified Part B form?

1.7. After the submission of Schedule 2 by each tenderer, have the Scottish Ministers received any correspondence relating to charges or fees which were not included in any supplier’s Schedule 2?

1.8. If so, please provide copies of all such correspondence, any replies from the Scottish Ministers and any subsequent, related correspondence.

Questions Relating to Modification of Part B

1.9. Please provide copies of all correspondence relevant to the decision to change from the Original Part B to the Modified Part B including, without limitation to that generality:
(a) any correspondence with any supplier with regards to the Original Part B;
(b) internal correspondence within Scottish Government relating to the change; and
(c) correspondence received from suppliers following the notification of the change to them.

1.10. Since the change to the Modified Part B, have any suppliers been paid any fees, costs, prices or other charges which they would not have been paid for call-offs instructed using the Original Part B?

1.11. Did the Scottish Ministers consider the implications of the change from using the Original Part B to the Modified Part B in relation to procurement law or the Regulations?

1.12. Did the Scottish Ministers take any legal advice, relating to Regulation 72 or otherwise, when deciding whether to change from using the Original Part B to the Modified Part B?

Response

1.1. The Scottish Government does not have the information you have asked for because the Scottish Government did not issue or receive any clarifications (correspondence) relating to what fees, costs, prices or other charges should be included in Schedule 2 during the tendering period. This is a formal notice under section 17.1 of FOISA that the Scottish Government does not have the information you have requested.

1.2. Tenderers were asked to respond in accordance with the instructions set out in the Invitation to Tender and responses were evaluated accordingly.

1.3 a. No.

1.3 b. All tenderers were evaluated in accordance with the Invitation to Tender.

1.3 c. The Scottish Government does not have the information you have asked for because all tenderers were evaluated in accordance with the Invitation to Tender. This is a formal notice under section 17.1 of FOISA that the Scottish Government does not have the information you have requested.

1.4. Yes, we confirm that the costs entered into the "Commission Rates" and "Temp to Perm" are the only charges payable by the Purchaser to the Service Provider in respect of the Service Provider performing its obligations under the framework agreement contract.

1.5. The Scottish Government does not have the information you have asked for because no additional sums have been paid under the contract by Scottish Ministers or other customers to suppliers which were not set out in the relevant Schedule 2.

1.6. Frasia Wright Associates included costs for practising certificates. Frasia Wright Associates were advised that additional charges were not permitted.

1.7. Yes, the Scottish Government received correspondence from Frasia Wright Associates.

1.8. I enclose copies of the following information you requested; 1. Q 1.8 FWA Form B and Practicing Certificate Correspondence, 2. Q 1.8 FWA Practicing Certificate Correspondence & 3. Q 1.8 FWA Pricing and Practicing Certificate Correspondence.

Exemption(s) under section(s) 38(1)(a)(b) ("Personal Information") and 33(1)(b) ("commercial interests") of FOISA applies to some of the information you have requested.

Exemption 38(1)(a)(b) ("Personal Information") is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

Exemption 33(1)(b) ("commercial interests") is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest as part of an open and transparent government, and to help account for the expenditure of public money. However, there is greater public interest in protecting the commercial interests of organisations which tender for Scottish Government contracts to ensure we are able to obtain the best value for public expenditure. This information has been redacted within the correspondence documentation provided.

1.9 a. Correspondence with any supplier with regards to the Original Part B. I enclose copies of the following information you requested; 1. Q1.9a Correspondence_Redacted, 2. Q1.9a Forms & 3. Q 1.9a FWA Pricing and Practicing Certificate Correspondence.

Exemption(s) under section(s) 38(1)(a)(b) ("Personal Information") and 33(1)(b) ("commercial interests") of FOISA applies to some of the information you have requested.

1.9 b. Internal correspondence within Scottish Government relating to the change. I enclose copies of the following information you requested; 1. Q1.9b new forms & 2. Q1.9b Updated Forms. An exemption under section 38(1)(a)(b) ("Personal Information") of FOISA applies to some of the information you have requested.

1.9 c. Correspondence received from suppliers following the notification of the change to them. I enclose copies of the following information you requested; 1. Q1.9c Form B SCS, 2. Q1.9c Form B SCS (2), 3. Q1.9c FWA Form B and Practicing Certificate Correspondence & 4. Q1.9c FWA Practicing Certificate Correspondence.

Exemption(s) under section(s) 38(1)(a)(b) ("Personal Information") and 33(1)(b) ("commercial interests") of FOISA applies to some of the information you have requested.

1.10. The Scottish Government does not have the information you have asked for because suppliers are only receiving the "Commission Rates" and "Temp to Perm" as per their Pricing Schedule 2. This is a formal notice under section 17.1 of FOISA that the Scottish Government does not have the information you have requested.

1.11. The November 2023 change to Part B seeks to break down the daily rate to aid clarity and transparency, it does not allow for any additional costs as these are already built into the daily rate. The bottom line / total remains the same.

1.12. See response to question 1.11.

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