There is detailed guidance on framework agreements in SPPN 05/2010. The following information has been produced to assist Procurement Officers when considering whether they should call-off from or set up a framework agreement.
Once a requirement has been identified for goods, services or works, and as part of the process of developing the appropriate procurement sourcing strategy, the procurement officer should consider if there are any existing arrangements which could meet its needs. Local procurement departments and Centres of Expertise will be able to assist in this process.
If there are no existing arrangements or if the sourcing strategy demonstrates that best value for money would be delivered by a direct award, the contracting authority will have to determine whether awarding a contract or framework agreement would be more appropriate.
The Decision Matrix provides an outline of the questions to be asked and when the others documents should be consulted.
Setting up a Framework Agreement - Early Considerations
- Is a framework agreement the right approach for the particular goods, services or works to be purchased?
- Will the framework agreement be for a contracting authority's own use or for use by a number of contracting authorities?
- Will the framework agreement be divided into categories (or lots)?
- Will the framework be concluded with a single supplier or multi-supplier framework?
- How will call-off contracts be awarded? Consult Method of Call Off.
- How best to include relevant sustainable criteria in order to deliver outcomes through the subsequent call-off arrangements as part of the subsequent contractual terms and conditions for establishing call-off contracts.
For further information consult the Guide for setting up Framework Agreements.
Once the framework agreement has been established the terms of the agreement should include instructions on how call-off contracts should be awarded. The contracting authority may also produce further guidance for the identified users of the framework agreement on how a call-off contract should be undertaken.
Calling off from a Framework Agreement - Early Considerations
- Was the contracting authority expressly identified in the contract notice?
- Is there more than one framework agreement which could meet the need?
- What are the terms laid down in the framework agreement for call-off contracts?
When calling off from a framework agreement, it is important to note that there is no scope to apply selection criteria. Selection criteria will have been applied when establishing the framework agreement and must not be repeated at the call-off stage.
When an aspect of contract delivery has not been included in the framework agreement but is relevant to the nature of the call-off contract, organisations should consider how best to address this in the call-off contract. Organisations should consider whether the terms laid down in the framework enable additional criteria which are relevant to the delivery of the call-off contract to be included or refined. For example, where Fair Work practices have not been included in the framework agreement but there is an award criterion to tackle “sustainability”, it is possible to include more precisely formulated criteria under this broader heading to address Fair Work practices.
Mini-competitions must generally be based on the same terms as those which were applied for the award of the framework. Regulation 34(10) of the PC(S)R 2015, however, allows, that where necessary those criteria may be more precisely formulated, or that other terms referred to in the procurement documents for the framework, may be applied where appropriate.
For further considerations and an example of a typical mini-competition process consult the Guide for the use of Framework Agreements
Detailed guidance for conducting a mini-competition should be available from the owner of the framework agreement which best meets your needs however there are specific rules which are applicable to all mini-competitions.
The call off must be placed with the supplier who has submitted the lowest price or whose tender is the most economically advantageous, on the basis of the award criteria set out in the framework agreement. Unsuccessful tenderers must be notified of the outcome when a contract is awarded under a framework agreement.
General Data Protection Regulation (GDPR)
Organisations must ensure that current and future framework agreements (including those entered into before the legislation came into force) are compliant with GDPR and all relevant procurement documents make reference to the new legislation.
When using framework agreements, and if required, organisations should review each call-off to ensure all relevant procurement documents have been updated to reflect the new legislation.
More detailed information on GDPR can be found in Leadership & Governance.
SPPN 03/2010 provides detailed information on Standstill and Associated Rules and how the rules apply when awarding call-off contracts under a framework agreement, whether by direct award of mini-competition. Please note that you may choose to follow the standstill rules on a voluntary basis when awarding an above-threshold contract by mini-competition in order to protect yourself from an ineffective order in the event of legal challenge
SPPN 3/2017 provides detailed information in relation to Speculative Framework Agreements. There are a number of organisations claiming to offer legally-compliant framework agreements to Scottish contracting authorities. In some cases it is clear that these framework agreements have been awarded without prior consultation with those authorities and may have been established without any real understanding of the authority’s actual requirements. This may have significant legal and value for money implications for public bodies. For the purposes of this SPPN, these are referred to as speculative framework agreements.
It is recommended that you treat claims that speculative framework agreements offer the prospect of “full procurement law compliance” with caution. Before using such a framework, a public body should consider very carefully what reassurance it offers it regarding both legal compliance and value for money.