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Modification of a contract/concession during its term
Section I: Contracting authority/entity
Section II: Object
Provision of Domiciliary Care Services in the Western Health and Social Care Trust Area
Lot 6 Enniskillen
Guaranteed Hours 1,692 hours per week;
Estimated Time Specific Hours 912 hours per week
Section IV: Procedure
Section V: Award of contract/concession
Provision of Domiciliary Care Services in the Western Health and Social Care Trust Area - Lot 6 Enniskillen
Section VI: Complementary information
Reference VII.2.2 Continued: Extension of Contract Period. The Trust is preparing to re-tender this Service. Unfortunately, this re-procurement exercise has been delayed as a result of the Covid-19 pandemic, and in particular due to staff diversion to deal with urgent and unforeseen Covid-19 consequences and exceptional pressures on the domiciliary care sector, this front line service and other critical areas affected by Covid-19. As such, new contracts under the re-procurement exercise will not be in place before the expiry of the current Contracts in Lot 6 on 28th February 2022. In order to ensure the continued and uninterrupted service delivery of this critical front line service in the interim, the Trust issued a letter dated 24th February 2022 to amend the Contracts in Lot 6 with effect from 1st March 2022 (Variation Date) so that the Contract Period shall be amended to include one further period of extension of 12 months commencing on 1st March 2022 and expiring on 28th February 2023. Department of Health Direction. The DoH NI direction has been brought about by exceptional circumstances; the need identified by the DoH NI to provide the Additional Funding to the independent domiciliary care sector is as a result of the Covid-19 pandemic and the exceptional and unforeseen pressures on the domiciliary care sector and this critical frontline service. The second condition of this ground under Regulation 72(1)(c)(ii) is that the modification does not alter the overall nature of the contract.. Here the service, being a domiciliary care service, is unchanged. As such, the modification does not alter the overall nature of the contract and therefore satisfies Regulation 72(1)(c)(ii). The final condition of this ground under Regulation 72(c)(iii) is met in that the increase in price does not exceed 50% of the value of the original contract. The increase in price for Lot 6 is £1,844,449 and the value of the original Contracts for Lot 6 is £8,000,000.
An economic operator that suffers, or risks suffering, loss or damage attributable to a breach of duty under the Public Contracts Regulations 2015 (SI 2015/102) (as amended) may bring proceedings to the
High Court (Northern Ireland). Any such proceedings are subject to the time limits as detailed in the Public Contracts Regulations 2015. (SI 2015/102) (as amended).
Section VII: Modifications to the contract/concession
Provision of Domiciliary Care Services in the Western Health and Social Care Trust (“the Trust”) Area
The Trust refers to its response at VII.2.1 and VII.2.2.
Extension to Contract Period
The Trust issued a letter dated 24th February 2022 to amend the Contracts in Lot 6 with effect from 1st March 2022 (Variation Date) so that the Contract Period shall be amended to include one further period of extension of 12 months commencing on 1st March 2022 and expiring 28th February 2023.
Department of Health Direction
The Department of Health Northern Ireland (“DoH NI”) direction referred to at VII.2.1 and VII.2.2 states the following:
“The overarching principles of this additional funding is to ensure that Independent Sector providers deliver significant improvements in the pay, and terms and conditions for staff across the sector. This has been emphasised to the sector representatives who have committed to ensuring that the uplift in funding will be utilised to stabilise and increase capacity across the sector. It is also the Department’s expectation that Trusts will work proactively with the sector to maximise capacity within areas of greatest need in terms of step-down and discharge from hospitals, waiting lists and unmet need. The Department will also continue to engage with the sector to
drive these changes.”
See the Trust’s response at VII.2.2.
The Health Minister made an announcement on 24th November 2021 that additional funding for pressures on service provision within the Independent Domiciliary Care sector (“Additional Funding”) would be available for the financial year 2021/2022 for the domiciliary care sector.
Following this announcement, the DoH NI made a direction in respect of this Additional Funding. The Trust is bound by statute to comply with directions of the DoH NI and as such to make payment as directed of an increased Hourly
Rate of £18.00 to its current domiciliary care Providers for the period from 1 – 31 March 2022. See also the Trust’s response at VII.1.4. In compliance with this statutory obligation to comply with the DoH NI direction, the Trust therefore issued a letter dated 24th February 2022 to all current Providers to vary the Contract in respect of this direction.
The Trust refers also to its responses below at VII.2.2 and VII.2.3.
The Trust refers to its response at VII.2.1 above.The first condition of this ground under Regulation 72(1)(c)(i) PCR 2015 is that the need for modification has been brought about by circumstances which a diligent contracting authority could not have foreseen.Regulation 72(1)(c)(i) PCR 2015 is satisfied in respect of this modification as the need for modification has been brought about by external circumstances, which a diligent contracting authority could not have foreseen when the Trust awarded these Contracts back in 2016.This is continued in VI.3 Additional information