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The DoE has issued consultation draft guidance on compulsory competitive tendering issues related to the transfer o...
The DoE has issued consultation draft guidance on compulsory competitive tendering issues related to the transfer of undertakings (TUPE) regulations.

The note identifies the 10 main issues on which councils or contractors have sought guidance from the DoE since the issue of DoE circular 10/93, and indicates the department's view.

The issues are set out in general terms but the assessment of individual cases and decisions on them are subject to the detailed facts in each case, the DoE says. The issues are:

Issue 1: Where an authority requires contractors to provide indemnities against the contingency of the contract, if entered into in the belief that it did not involve the transfer of an undertaking, being at some later date found to be subject to TUPE. DoE: There is normally no question of financial liability arising for a transferror authority in these circumstances, so no reason for a tenderer to offer such an indemnity normally, nor for an authority to require one. An authority doing so is potentially behaving in an anti competitive way.

Issue 2: Where a contractor asks for an indemnity from the authority against costs which may fall on him in the event of the contract, if entered into in the belief that it did not involve the transfer of an undertaking, being at some later date found to be subject to TUPE. DoE: It is open to each authority to decide whether to offer indemnities or consider bids involving indemnities, subject to normal practice; the cost of securing the indemnity may be included in an evaluation and should be reasonable in relation to the risk and prospective cost involved.

Issue 3: Where an authority refuses to provide tenderers with information on the existing in house workforce or provides insufficient information to enable contractors to submit and cost proposals involving TUPE should they wish to do so.DoE: This is potentially anti competitive; some councils have suggested disclosure of workforce information held on computer is prevented by the Data Protection Act 1984, but councils should be able to provide non personal information within the terms of the Act.

Issue 4: Where the service is currently provided by a private contractor, who refuses to provide the council with workforce information. DoE: The council should do whatever it can to obtain the relevant information from the existing contractor, but if impossible it should assemble and supply information from other sources; in future contracts councils should include a requirement for disclosure of TUPE related information at the end of the contract period.

Issue 5: Where an authority delays tendering or retendering beyond the prescribed date on the grounds that the TUPE position is uncertain. DoE: TUPE is not a cause for delay.

Issue 6: Where an authority refuses to accept non TUPE bids from contractors who have been supplied with workforce information. DoE: Workforce information must be made available to any contractor, but contractors also remain entitled to submit non TUPE bids if they wish, whether or not they have received workforce information.

Issue 7: Where a tenderer has submitted a tender based on an assumption about whether or not TUPE would apply which the authority believes to be incorrect. DoE: Tenderers should be asked to indicate, when submitting tenders, whether bids and prices are based on TUPE applying or not applying; contractors should be given a chance to revise bids where there is a dispute; all other tenderers should be notified of the action and also given the chance to revise tenders; a reasonable time should be allowed for re-consideration and re- submission of tenders.

Issue 8: Where a tenderer is unwilling to submit a revised bid because he believes that his view of TUPE in relation to his proposal is correct. DoE: the authority should approach the tenderer, setting out its reasons, if he is unwilling to revise it the council may refuse to consider or select the tender; before ruling out a tender assessment must be based on detailed legal consideration of the tender's specific proposals; if the work is awarded to a DSO it will be open to a rejected tenderer to argue that the council acted anti- competitively.

Issue 9: Where different contractors have submitted proposals, some of which are agreed to be subject to TUPE, others of which are agreed to be not subject to TUPE. DoE: Such tenders can be evaluated in the normal way.

Issue 10: Where a contractor submits alternative proposals and bids, one to which TUPE applies, the other not. DoE It is normally open to a contractor to submit more than one proposal and is potentially anti-competitive for a council to insist on a single bid.

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