13. Waivers

13.1

The requirement for the Council to conduct a competitive purchasing process for contracts in excess of £10,000 may be waived in the following circumstances.

13.1.1	For contracts which are not subject to the EU Rules, the work, supply or service is required as a matter of urgency and a delay would be likely to lead to financial loss, personal injury or damage to property; or
13.1.2	the circumstances set out in the Public Contract Regulations 2006 Regulation 14 apply (whether or not the contract is of a type which is subject to the application of the EU Rules); or
13.1.3	the contract is awarded under a Purchasing Scheme of a type where a competition has already been undertaken on behalf of the Council; or
13.1.4	at the discretion of the relevant Senior Manager who may proceed in a manner most expedient to the efficient management of the service/Council with reasons recorded in writing.

13.2

A Responsible Officer who seeks a waiver of Contract Standing Orders, shall do so only in advance and only in exceptional circumstances. Further guidance on what may constitute exceptional circumstances permitting waiver of these Contract Standing Orders is set out in the Council’s Purchasing Guide.

13.3

All waivers from these Contract Standing Orders must be:

13.3.1	Fully documented
13.3.2	Subject to a written report in an approved format, available on the intranet, to be submitted in advance to the relevant Senior Manager which shall include reasons for the waiver which demonstrate that the waiver is genuinely required
13.3.3	Subject to approval in advance by the Section 151 Officer who shall record that they have considered the reasons for the waiver and that they are satisfied that the circumstances justifying the waiver are genuinely exceptional. Applications for waivers which are a result of poor contract planning will rarely be considered genuinely exceptional.
13.3.4	Subject to periodic report to Cabinet by Procurement and Contracts Unit and retrospective waivers will also be reported via Governance & Audit Committee

13.4

All decisions on waivers must take into account:

13.4.1	Probity
13.4.2	Best value/value for money principles.

13.5

For contracts subject to the EU Rules, any waiver from the requirement for competition must meet the conditions set out in the EU Rules in addition to the general requirements above.

CSO 13

1

The requirements of the CSOs can only be waived in very exceptional circumstances and in advance. If a waiver is made to these CSOs, then the provisions of CSO 13 must be complied with to ensure it is clear why the decision has been made and by whom. All the relevant circumstances must be taken into account.

2

These provisions should not be used merely where to go out to tender would, for example, result in additional administrative or procedural burdens or a short period of delay. The waiver provisions should not be used as an excuse for poor procurement practice or for a lack of advanced planning (see CSO 13.3). The general presumption is that contracts will be put out to competitive tender so as to ensure that the Council uses its resources efficiently, purchases quality goods, services and works, safeguards its reputation from any implication of dishonesty or corruption and is able to demonstrate principles of sustainability, efficiency, whole life costings and cost savings.

3

It is very important to note that if the contract is of a type and value which means that it is subject to the EU Rules then there are only very limited circumstances in which a contract can be awarded without competition and the permitted circumstances are extremely narrowly interpreted. If you are seeking to exclude an EU contract from the requirement to go out to competition then you must seek advice in advance from Legal Services.

4

For contracts which are not subject to the EU Rules there are still obligations in terms of ensuring appropriate levels of competition (see comment at CSO 4.1.2 and CSO 7.1).

CSO 13.1

5

CSO 13.1.1: This CSO sets out the circumstances where it may be permissible due to a matter of urgency for the Council to purchase works, supplies or services without going through a competitive process.

Example

For a contract not subject to the EU Rules, a waiver from the requirement of competition may be appropriate using CSO 13.1.1 where, due to unforeseen circumstances, there is an urgent requirement for the provision of domiciliary care services and failure to deliver those services as speedily as possible may lead to health and safety issues for users.

6

CSO 13.1.2: Regulation 14 of the Public Contracts Regulations 2006 sets out certain, narrowly constrained circumstances where contracts which are subject to the EU Rules can be awarded without following a competitive purchasing process. These EU Rules also provide a good steer for the sort of circumstances where it may be acceptable to waive the requirement for competition for contracts which are not subject to the EU Rules. These include the following types of situation:

Examples

Where the Council has already gone out to an open and competitive tender, but only non compliant tenders have been received. It therefore decides to terminate the procurement process and negotiate the contract with those bidders who submitted a tender as part of the previous process.
Where the Council went out to open competition and received no responses at all, in which case it decides to approach a single contractor and negotiate a deal on the basis of the original terms included in the public tender process.
Where the Council already has a contract under which goods have been supplied to it and it then requires additional goods which could not be provided by another supplier and obtaining goods from another supplier would result in genuine incompatibility between the existing goods and those to be purchased or genuine and disproportionate technical difficulties in procuring the goods from elsewhere. Under the EU Rules, the additional requirements must also be purchased within 3 years of the original contract.
Where there is a closing down sale so that goods can be purchased on a particularly advantageous basis.

These examples are not an exhaustive list but they do give an indication of the sort of circumstances where the purchase of additional goods, works or services without competition may be permissible. Where the Council wishes to extend a contract then CSO 14 will also apply.

7

CSO 13.1.3: Where a contract is awarded using a Purchasing Scheme (where appropriate, one which is compliant with the EU Rules) then provided that the Council is satisfied that the conditions set out in CSO 15 are met then there will be no further need to run a competition as that has already been undertaken on behalf of the Council.

8

CSO 13.1.4: In exercising discretion as to the award of the contract without the competitive process, the individual making that decision must pay due regard to the requirements of the CSOs and this purchasing guide. If the EU Rules apply then they must seek advice from Legal Services prior to proceeding.

Examples of where a waiver may be justified include:

Requiring two rather than three written quotes for a contract between the value of £10,000 - £75,000 where there is clear evidence that the number of potential contractors is extremely limited
A decision to go down a written quotation route rather than the requirement to obtain three written tenders in advance (for contracts below the EU threshold) and where the Council is satisfied that (1) there is no obligation to advertise that opportunity to comply with the general requirements of the EC Treaty Principles and (2) the general underlying requirements of the procurement process will still be satisfied.

NB Waivers should not be used for reasons of poor planning. It should not be the case that a contract is due to expire and has not been properly planned for. Appropriate tender lead cycles need to be factored into the planning process to avoid avoidance of best practice procedures.

Extensions to Existing Contracts

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