Using procurement to enhance the student experience and employability

While there is some debate about the applicability of the public procurement regime to Higher Education, it is true that most are taking a cautious…

While there is some debate about the applicability of the public procurement regime to Higher Education Institutions (HEIs) it is true that most are taking a cautious view and assuming applicability until the issue is resolved before the courts.

For those HEIs, an option may now be to use the suppliers of goods, services and works to provide enhancements to the student experience and improve the institution’s student employability statistics in the DLHE etc.

Such schemes may include:

  • Bursaries
  • Student engagement events such as mock interviews
  • Graduate recruitment by the bidders
  • Work experience for students in relation to contracts between the provider and the HEI
  • Other interactions such as KTPs and research contracts.

Until the Public Contract Regulations 2015 came into force it was very difficult to take into account "social" criteria when deciding on marking regimes for tender exercises. This was because such criteria were not considered to be sufficiently "linked to the subject matter of the contract" in providing "the most economically advantageous tender from the point of view of the contracting authority" (Regulation 30(2) of the Public Contract Regulations 2006 and Concordia Bus Finland Oy AB v. Helsingin Kaupunki (Case 513/99).

The European Court of Justice neatly sidestepped the issue while making noises about being supportive about such matters in cases such as Commission v Netherlands (Case 368/10).

When the European Commission published Directive 2014/24 they left the door open for "social" criteria to be used in deciding who would be awarded public contracts and this made it into regulation 67 of the 2015 Public Contracts Regulations in England and Wales:

67.— (1) Contracting authorities shall base the award of public contracts on the most economically advantageous tender assessed from the point of view of the contracting authority.

(2) That tender shall be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing in accordance with regulation 68, and may include the best price-quality ratio, which shall be assessed on the basis of criteria, such as qualitative, environmental and/or social aspects, linked to the subject-matter of the public contract in question.

As a result, for the first time, an HEI may give marks in a tender assessment for social criteria; however those criteria:

  • Must provide some benefit for the HEI
  • Must comply with the other provisions of the Regulations, such as transparency and equality of treatment
  • Must be relevant and proportionate to the contract being tendered
  • Must "not have the effect of conferring an unrestricted freedom of choice on the contracting authority" (Regulation 67(6))
  • At least for the time being, case law (Concordia, see above) tells us that those criteria must be limited to the "footprint" of the contract (those delivering or receiving the supplies, services or works). The goods news is that for many contracts, that will include students.

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