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					Best Value Tendering for CDS Contracts 2010: Annexes



Annex 2: CDS Contract 2010 terms

Summary of consultations on contract contents

           Event                    Date                       Details
Consultation on                5 March 2009        Consultation with The Law
amendments to CDS                                  Society and representative
Contract 2010 Standard                             bodies on revised standard
Terms                                              terms
Consultation on                May 2009            Series of local consultations
amendments to duty                                 with all current members of
scheme boundaries                                  the duty solicitor schemes
Consultation on                July/August         Consultation with The Law
amendments to the CDS          2009                Society and representative
Contract 2010 Specification                        bodies on amendments to
(BVT and non BVT terms),                           the specification and Duty
Crime Contracts for                                Solicitor Arrangements 2008
Signature and Duty Solicitor
Arrangements 2008
Tender for the CDS             October 2009
Contract 2010

2.1.    We propose to base the CDS Contract 2010 on the current Unified
        Contract (Crime) 2008 with various updates and amendments. For
        information, we summarise below the main proposals that are
        currently expected to be included in the above consultations.

Standard terms

2.2.    In October 2008 the Legal Services Commission (LSC) published
        Civil Bid Rounds for 2010: A Consultation, which summarised
        potential amendments to the Unified Contract (Civil) standard terms.
        We aim to have one set of standard terms covering crime, civil and
        Very High Cost Cases (VHCC’s). We have since revised the current
        standard terms to update them and make them simpler and clearer.
        We have reduced and incorporated the seven annexes to the current
        Standard Terms (covering further detail liaison, equalities, monitoring,
        personnel etc) into the main body of the Standard Terms to make
        them shorter and simpler.

2.3.    The revised terms are currently subject to a consultation with The Law
        Society, Advice Services Alliance (ASA) and Law Practitioners Group
        (LPG), which commenced at the beginning of March 2009.




March 2009             Annex 2: CDS Contract Terms 2010                       50
2.4.       Other key changes to the Standard Terms include:

       •     Restructuring of the Standard Terms and specification

We propose to move provisions currently in the standard terms that are specific to
crime or civil to the specification so that any amendments to take account of crime
schemes do not affect the standard terms of the civil contract and vice versa.
Provisions to be moved are those covering crime personnel and supervisors, contract
schedules and payment. This restructure in itself will have little effect on providers.

       •     Confidentiality and data protection

We propose to update the confidentiality and data protection provisions to comply
with new Government recommendations.

       •     Working with third parties

We have clarified the rules on third parties undertaking contract work. We have
retained the rules on using agents as in the current contract.

       •     Incorporation of Specialist Quality Mark quality terms

We have moved the key terms from the Specialist Quality Mark (SQM) into the main
standard terms, to allow bidders to apply for other approved quality marks as an
alternative. We also think having all the quality terms on supervisors, fee earners etc
in one place will be clearer for providers.

       •     Office moves and other changes

We have sought to clarify the rules concerning office moves and other changes in
order that firms can make informed decisions when seeking to relocate or make
changes.

       •     Dispute Resolution

We propose to continue with the current arrangements allowing providers to raise
disputes on their contracts internally through an application to the Legal Director for a
review. We will also continue to consider mediation if a dispute cannot be resolved
internally. If a dispute cannot be resolved through mediation, or is not suitable for
mediation, then we propose that application to Court should be the next forum, rather
than arbitration as at present.

Specification

2.5.       In response to views expressed by providers, we aim to keep any
           amendments to the crime specification to a minimum. There will, however, be
           a small number of changes in addition to those regarding the Standard
           Terms and the Duty Solicitor Arrangements mentioned above. These include
           but are not limited to the following:
March 2009              Annex 2: CDS Contract Terms 2010                               51
       •     as stated above incorporating crime specific requirements moved to the
             specification from the current contract standard terms
       •     incorporating the Duty Solicitor Arrangements into the contract to remove
             any ambiguities between the two documents and to move the responsibility
             for compliance from the individual to the firm
       •     clarifying issues such as definition of an office
       •     correcting minor drafting errors from the current contract
       •     mapping of the Duty Solicitor Scheme boundaries using postcode sectors
             to put the qualification process beyond doubt and thereby to remove the
             uncertainty and delay caused by appeals against decisions based on travel
             times
       •     minor amendment to Key Performance Indicator (KPI) 2 - duty rota call
             acceptance, to bring the reporting period in line with all other LSC KPIs
       •     removal of requirement for duty solicitors to personally undertake over 50%
             of all court duty and police station duty slots offered, given that slots are
             now awarded to a provider, not an individual
       •     increase the requirement for duty solicitors to undertake a minimum of 24
             police station attendances and 12 magistrates’ court attendances in each
             12 month rolling period, including at least one police station attendance per
             month and one magistrates’ court attendance per quarter
       •     review of serious offences (those cases where solicitors rather than
             accredited representatives must have conduct) to ensure the list remains
             up to date and relevant
       •     there will also be potential amendments to the specification arising from
             the proposed changes to funding for prison law 1
       •     new clause to allow changes in payment arrangements where police
             stations close
       •     amendments to limit contract scope for providers outside BVT pilot areas
             to remove their ability to perform contract work at police stations within the
             BVT pilot areas
       •     amendment to reflect the payment of the BVT magistrates’ court price for
             any non-BVT provider who undertakes a case in a court in a BVT area.

2.6.       We aim to consult with The Law Society on the detailed specification drafting
           in July 2009.

Duty Solicitor Arrangements 2008

2.7.       Following the significant number of appeals against our decisions on
           membership of duty schemes, we are proposing to amend the membership
           rules so that scheme boundaries are drawn according to postcode sectors, ie
           down to the first number in the second section of a postcode, eg DE75 7, and
           produce definitive maps of scheme boundaries. This will remove the
           subjectivity of a rule based on travel time, and will make the application
           process entirely objective based on the postcode of the applicant’s office.
           The Duty Solicitor Arrangements will be amended to reflect this.


1
 For more information please see Prison Law Funding, a Consultation Paper on our website at
www.legalservices.gov.uk following the links to CDS > Crime Consultations > Prison Law Funding
March 2009               Annex 2: CDS Contract Terms 2010                                        52
2.8.    In conjunction with the above, we propose to amend the sections of the Duty
        Solicitor Arrangements 2008 that deal with the process for appealing LSC
        decisions regarding qualification for duty solicitor schemes. Where schemes
        are mapped as described above, eligibility will be an objective assessment,
        which will obviate the need for an appeal process.

2.9.    We also propose to move the requirements of the Duty Solicitor
        Arrangements into the contract, which will remove the tension that exists
        currently between the requirements on the individual duty solicitor as set out
        in the Duty Solicitor Arrangements and the requirements on the firm as set
        out in the contract. As a result of this proposed change, responsibility for
        compliance with duty solicitor service requirements will fall with the firm.

2.10.   This consultation will be with The Law Society.

Police station closures

2.11.   We currently have in-house guidance regarding the impact of long-term
        police station closures (final closure or closure in excess of a 6-month period)
        on fixed fees. Where work is diverted, providers from the original area are
        able to claim either the previous fixed fee or new fixed fee, whichever is the
        higher for the remaining duration of that contract. This ensures that we have
        capacity in the system to deal with increased volumes at the diverted site,
        and contains expenditure at or below current levels. Subsequent contracts
        remove the obsolete fixed fee rate and all providers have to revert to the
        remaining fixed fee level. It is recommended that this approach is formalised
        in the 2010 contract.

Application process

2.12.   The application process will comprise an electronic registration process,
        similar in content to that followed for the July 2008 contract, although we are
        working to extend the process and implement an online application system to
        replace the previous hard copy forms.

2.13.   The e-tendering system will be hosted by a procurement software specialist
        company widely used for government procurement, and the benefits of the
        system are set out at Chapter 3.

2.14.   The application process will comprise the following three steps:




March 2009            Annex 2: CDS Contract Terms 2010                               53
Step one        The Legal Services Commission (LSC) has a basic duty to
Pre             ensure that those firms we contract with are suitable
qualification   organisations to enter into such contracts with a public
questionnaire   procurement body. To meet this duty, we must take steps to
(PQQ)           satisfy ourselves that any applicant firm is legitimate and
                financially sound, and that those responsible for that organisation
                are technically competent and honest.

                We propose that the PQQ stage should cover the following
                issues:

                Professional/ business qualification and conduct including
                registration with a regulatory body and criminal convictions and
                other business or professional misconduct.

                Financial record including payment of VAT, tax and social
                security liabilities and insolvency issues.

                Compliance with key legislation including health and safety,
                equalities and diversities and data protection.

                Bidders’ insurance position.

                Termination for fault within previous public sector contracts
                (including LSC contracts).

                Assessment of Criteria
                Wherever appropriate, the questions will be posed to require a
                Yes / No answer.

                However on appropriate questions, bidders will have the
                opportunity to explain any circumstances surrounding a ‘no’
                answer (where a ‘yes’ is required). This information will then be
                assessed to determine whether or not the application can
                proceed.

                In addition we will reserve the right to request and assess further
                supporting evidence where we feel that this is necessary to
                satisfy ourselves about the viability of a firm, or where we have
                concerns about the validity of an application.




March 2009          Annex 2: CDS Contract Terms 2010                                  54
Step two              Following assessment against the PQQ criteria, each applicant
Crime specific        must demonstrate that they meet/ will meet a number of key
invitation to         criteria in the operation of crime specific contracts.
tender criteria
(ITT)                 The criteria contained within the crime specific ITT will be
                      exclusionary. Wherever possible, the questions will be posed to
                      require a Yes / No answer, equating to in essence, self-
                      certification.

                      We are proposing the following areas be included:

                              •    where Peer Reviews have been conducted, a
                                   minimum Peer Review rating of three has been
                                   achieved 2
                              •    for those applicants who hold/have held a Unified
                                   Contract (Civil), an unrecouped payment on account
                                   (UPOA) value less than 200% of the value of the
                                   previous year’s fund take
                              •    ability to provide services and have an office in place
                                   from the start date of the contract.

                      At the end of this stage, providers not located in pilot areas for
                      best value tendering will be awarded their CDS Contract 2010.
                      Please see chapters 4 and 5 for further details of our proposals
                      for providers located within the BVT pilot areas of Manchester
                      and Avon & Somerset.


Step three            Providers who wish to conduct duty work must then apply for
Application for       inclusion on those duty schemes for which they are eligible.
duty slots
(non-BVT areas        To assist with this stage of the application, we will provide an IT-
only)                 based tool where applicants can enter their office postcode to
                      produce a list of all the schemes for which that office is eligible.

                      Applicants will upload relevant CDS12 Duty Solicitor Qualification
                      Forms at this point. The current CDS12 form will be revised to fit
                      with the tender processes.

                      Slots on Schemes not within the proposed BVT areas will be
                      allocated on the same basis as for the Unified Contract (Crime)
                      July 2008, ie on a basis proportionate to the number of duty
                      solicitors employed by the firm and normally based in the eligible
                      office.
2
 We recognise that in some instances providers will not have had a Peer Review conducted and the
criteria will not be applied in these circumstances. However, retention of the contract will be dependent
on a confirmed PR3 rating when the assessment takes place.
March 2009                 Annex 2: CDS Contract Terms 2010                                           55
                  Rotas will continue to be produced to cover a six-month period.


2.15.   For the avoidance of doubt, providers bidding for slots in BVT areas will not
        undertake step three as outlined above but will then proceed to the price
        element of the tender as detailed in chapter 4 of this consultation document.




March 2009            Annex 2: CDS Contract Terms 2010                              56

				
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