INVITATION TO TENDER - TUPE UNDERTAKING

[MEC1]

Good afternoon

I am considering bidding for a local authority tender (to provide services), which I have expressed an interest in.

The tender was initially unsuccessful as it covered too large an area and no expression of interests were received. The new tender has therefore been split into 4 different Lots.

My query concerns the TUPE section of the tender document, which states that it is "the Local Authority's view that TUPE will apply to this contract..."

However, if the current (outgoing) contractor looks after the whole area's services, and the new contract splits this area into 4, I'm confused how TUPE can be applied?

So, for example, say the current contractor employs 2 staff to service the whole contract, how do these staff transfer when the contract is split up to possible 4 new service providers?

Many thanks in advance for any advice/explanations.

 

[Paul Kelly ICHYB]

This probably needs clarification by the council - you can contact them and ask!

If you are happy to employ one or both staff if you will the contract, just agree to it!

 

[ethical PR]

I agree local authority tenders always include a contact number/email for clarifications. Just get in touch with them and ask.

 

[MEC1]

Thank you for your replies thus far.

I have submitted the relevant confidentiality form requesting the relevant TUPE schedules concerning the staff that would be subject to transfer. This should hopefully shed more light on this matter, and I appreciate that I have the ability to submit questions too.

I guess I just wanted to know the general legality of it, where one contract is split into four. I had a slight suspicion that, as the contract was originally for the whole service area and then split into four Lots due to a lack of interest, that perhaps this section hadn't been reconsidered....

 

[Newchodge]

If staff are allocated specifically to each of the 4 different service areas, there will be a transfer of services and TUPE will apply. If half a member of staff's time is allocated to one area, and half to another, then TUPE may still apply.

 

[MEC1]

Okay, so I have a bit more detail now to update the scenario:

Current Contractor has the whole contract, proving 2 types of (related) services at 2 areas.

Due to a lack of interest, the New contract is to be split into 4 Lots:
Lot 1: Service type 1 at Area 1;
Lot 2: Service type 2 at Area 1;
Lot 3: Service type 1 at Area 2;
Lot 4: Service type 2 at Area 2.

Most staff listed under TUPE are percentage split between the two Services, for example Joe Bloggs does 13% on Service 1 and 77% on Service 2. Their Base Areas are also given.

As I am only interested in Lot 1, I have therefore been able to ignore some, due to falling into Lots 2 - 4 in their entirety.

The remaining staff based in the Lot 1 area have a split percentage between Service type 1 and 2, with the majority being for Service type 2 (Lot 2). The highest percentage in my Lot however is only 21%.

So to summarise:
There are 13 staff applicable to Lot 1 and 2, all having a percentage of between 3 - 21% applicable to Service type 1 (Lot 1) with the remainder being Lot 2.
There are 6 additional staff (managers/admin) listed who fall into my area but who don't have a service type percentage split, it declared not to be known by the current contractor.

Should I win the contract I fully appreciate that negotiations would commence using a TUPE legal advisor, however, I would welcome any advice on the potential impact for me, any hints or tips, as well as where I stand regarding the missing information for the 6 additional staff - as I need to know whether it's even worth submitting a bid.

Thank you in advance.

 

[Newchodge]

What is the total percentage of staff allocated to Lot 1 ie 5 @ 15% would be 75%?

You may not have to take any TUPE staff, or you may need to take 1 plus 1 manager. It is impossible to say from this information.

I suggest you ask the current contractor what work is undertaken by the 6 unallocated staff that falls under Lot 1. They may not be able to give an exact % split, but they should tell you what they do.

I do not believe that TUPE allows for transfer to 2 different new employers, so you may have no TUPE obligation whatsoever, however, you do need to seek professional advice before making a final decision.

 

[MEC1]

Thank you Cyndy.

The total percentage split falling under Lot 1 is 171% (without counting the 6 unallocated).

I intend to ask the question about the 6 unallocated staff as I feel that some sort of percentage split should be applied, i.e Manager A overseeing the whole contract, or the Administrator, for example could be split 25% to each Lot, weighted accordingly.

I fear that the current contractor is using this exercise to shed their staff load as the list is excessive for the contract requirements/spec - not sure there's anything I can do about that though, nor prove it...

 

[carl.atkinson]

It might also be worth asking the local authority whether there is anything in their contract with the outgoing contractor which is relevant to the TUPE issue. It's common for the outgoing contractor in these circumstances to "dump" their worst performing staff on the new incoming contractor ("lemon dropping") and sometimes there is a clause in the contract which prevents an outgoing contractor from moving staff onto a contract within a defined period prior to the transfer. Unless you are happy to take on the employees who are said to be assigned to the transferring work it will be worth getting some professional advice on the potential TUPE exposure and any possibility to mitigate that cost.

 

[Newchodge]

Outgoing contractors also, sometimes, exaggerate TUPE liability in the hope of putting off potential competitors. If no one bids they may be able to keep the contract ...