NHS Procurement and Subcontractor Exclusion

Debate between Stephen Hammond and Peter Heaton-Jones

Thursday 4th July 2019 Commons Chamber

[The Minister for Health (Stephen Hammond)]

It is a pleasure to respond, and I thank the hon. Member for Bury South (Mr Lewis) for securing this debate to highlight an issue about which he rightly feels very strongly, as it affects a company in his constituency.

The title of this debate highlights the two things the hon. Gentleman wants to raise. The first is the specific issue and, as I have some time, I will talk a little about procurement processes with subcontractors in general, too. He highlights an issue with a specific framework contract that, as he rightly says, is managed by my Department.

The specific issue the hon. Gentleman raises is on the use of subcontractors in the flooring industry under the construction framework ProCure22. The issue was originally raised through the Government public procurement review service, hosted by the Cabinet Office, back in December 2018. A response was provided by officials at the time and is on the Government website.

The hon. Gentleman asked a number of direct questions, which I will tackle later in my speech. I hope to satisfy him but, if not, I will, of course, be very happy to write to him.

The issue, as the hon. Gentleman says, is that one of the suppliers under the P22 framework is using three companies based in the European Union and that a supplier in his constituency is not being used. He is not seeking to suggest that suppliers be excluded for unlawful reasons, but he is suggesting that the supplier in his constituency has been excluded because there was not a fair competition. That is the essence of what he said.

On the competition question, the hon. Gentleman will know that my Department and the Cabinet Office provided a response saying that, although we have some influence over subcontractors under the ProCure22 framework, this only relates to certain tier 1 subcontractors that are primary supply chain members. They are required to pass a certain series of checks with the authority before they can be registered. Those checks are limited to organisations undertaking certain roles and do not extend to the suppliers of flooring products. The principal supply chain partners have been selected through an appropriate procurement process, in line with the Public Contracts Regulations 2015. Those companies are then free to build their own supply chains, which is where the company in the hon. Gentleman’s constituency is at odds. The company leading the supply chain is not always bound by public sector procurement regulations. I am obviously aware of the French authorities imposing a fine on the three companies at the end of 2017, and I want to address some of his remarks on that in a moment.

Officials in my Department have met supply chain partners on a regular basis, and we seek wherever possible to encourage the use of UK-based SME subcontractors. As the hon. Gentleman said, we have a duty to the public sector to deliver value for money. It is for our supply chain partners to demonstrate that that is the case with each of their products.

I think the hon. Gentleman is concerned that my Department has not replied to a letter from Halstead—the aggrieved company in question—of January this year. I can confirm that the Department received the letter from DWF lawyers, acting on Halstead’s behalf. The letter was addressed to me on 16 January, and my Department has a record of a reply being sent on 13 February, referring DWF to the response that had been published on the public procurement review service that I referred to earlier. If the hon. Gentleman does not have a copy of that reply, or if he finds when he speaks to Halstead that it does not have a copy or the lawyers have not passed it on, I will be happy to sort that out.

Officials in my Department have engaged with Halstead directly—that engagement started in March 2018—to explain how the framework operated. I hope that the company will be able to confirm to the hon. Gentleman that officials have responded fairly promptly to any questions that have been raised. I understand that Halstead has used that feedback and is currently bidding to form part of the supply chain.

The hon. Gentleman asked a large number of very specific questions, and given that the House has a little bit of time tonight, I thought I might try to respond to them now rather than writing to him.

[Peter Heaton-Jones (North Devon) (Con)]

I take an interest in this matter because I have a large and very successful district hospital in my constituency. I listened with care to what the hon. Member for Bury South (Mr Lewis) said. It seems to me that what we want in public procurement—not just in the NHS, but across the public service—is for the best contractor to do the best job at the best price for the public purse, but always in a framework, as the hon. Gentleman wisely said, of fair competition. If that has not happened in this case, does the Minister believe that that is because of a structural problem with the P22 framework, or is a local difficulty to blame?

[Stephen Hammond]

I want to speak about the overall process later in my speech. Having been to Nottingham to open the national procurement centre for the NHS last week, I am clear that we should have the best procurement processes in place to ensure that money from the public purse is spent wisely. That is even more important in the health service than it is in almost any other part of the public sector, because money spent wisely means better patient care, and that is key.

I hope that I will be able to prove to my hon. Friend and the hon. Gentleman that the problem with this contract was not with the framework itself, but with how one particular company chose to apply the criteria. I am not saying that the company necessarily applied the criteria inaccurately or wrongly, but it did not do so in a way that we would normally encourage.

--- Later in debate ---

[Stephen Hammond]

As I said earlier in my remarks, each principal supply chain partner must make sure that their internal policies and procedures align with the requirements of the framework, but it is not for the Department to tell each principal supply partner how to set out their criteria, nor the specific processes they should use. The hon. Gentleman rightly made the point that is my Department’s responsibility to ensure that the policy is correct. I hope he is hearing that my Department ensures that the right procedures and processes are in place and that the individual principal supply chain partner must choose the most appropriate one for the right framework it is on. I hope he will accept that.

I was just about to refer to the issue of the three overseas companies that were chosen and the sanctions that were imposed on them. As I said earlier, I am aware that the French authorities imposed the fine on the three companies at the end of 2017, but those convictions were imposed after the preferred supplier list was established. Clearly, the Department does not have sight of the contractual agreements between the supply chain partners and the suppliers. The supply chain partners are not within the scope of the Public Contract Regulations 2015.

The hon. Gentleman asked whether I could assure him that Kier would be instructed to add Halstead to the list as a matter of urgency. He will know, obviously, that it is not within my remit or my ability to instruct private sector organisations to engage with specific companies, but I can reassure him that Halstead is currently bidding as part of the refresh of the Kier supplier list and its application will, I know, be scored on the merit of the criteria set. I hope that that reassures him.

I want to turn briefly to how the Department supports and encourages small and medium-sized enterprises and subcontractors more generally. Clearly, we have been dealing with some very specific issues, and that underlines the complexity of the procurement landscape. The understanding of who exactly subcontractors are, and the work that they undertake, is, by its very nature, not well understood unless it is for a very major significant construction project. NHS organisations would usually expect the Crown Commercial Service or the regional procurement solution to identify and track the supply chain of the suppliers providing the goods, works or services. However, there is currently a limited understanding of the suppliers on locally negotiated contracts.

The Public Contract Regulations 2015 clearly allow public sector organisations to permit subcontracting within supply chains as long as the subcontractors meet the minimum standards set out, and the hon. Gentleman knows that I have just set those out. Where issues in subcontractor performance arise, the regulations also allow for the subcontractor to be excluded.

The Department’s SME action plan for 2019-20 highlights the actions that we are taking to make it easier for SMEs to work with the whole of the health supply system. The Department has a target of 23% of our direct and indirect spend with SMEs by the end of March 2022.

[Peter Heaton-Jones]

Notwithstanding the note that the Minister might just have been passed—[Interruption.] This is an important point. I have mentioned already the fine hospital that I have in my constituency, but I also have many fine SMEs, which need to be on a level playing field when it comes to being able to tender for these sorts of procurement contracts. What I am looking for the Minister to give me and, I am sure, to other hon. Members with fine SMEs in their constituencies is an assurance that they have that level playing field and that they can get these contracts.

[Stephen Hammond]

I am happy to give my hon. Friend that assurance. It is absolutely the commitment of the Government to ensure that small and medium-sized enterprises are not excluded from any form of public sector procurement. I am pleased to say that the Department has published an action plan to that effect. I am actually the Minister in charge of ensuring that that action plan is implemented, and I am pleased to say that the Cabinet Office holds meetings of ministerial champions across Whitehall to ensure that, as a Government, we meet our targets.