North East Procurement Organisation
Guildhall
Quayside
Newcastle upon Tyne
NE1 3AF
Telephone: 0191 433 5949
Email: xxxxxxxxxx@xxxx.xxx
Dave Orr (sent by email)
15th January 2021
Dear Mr Orr,
Freedom of Information Request.
I refer to your request of
Freedom of Information request - Copy of your
contract with Bloom.
Your initial request was:
Dear North East Procurement Organisation,
The ICO Guidance on Outsourcing and Freedom of Information requests
contains the following advice:
"18. It’s important to establish an objective reason for deciding whether certain
information is held by a contractor on behalf of a public authority. The primary
source that we would consider is the contract between the authority and the
contractor. As this defines the relationship between, and the responsibilities
of, the two parties, it provides an objective, evidence-based approach to
resolving the issue. We recommend that public authorities should refer to the
contract if they need to resolve an issue as to what information is held on their
behalf. While it is unlikely that the contract will define explicitly what is held on
behalf of the authority, it may indicate, for example:
• what information the contractor is required to provide to the authority
for reporting and monitoring purposes,
• what information the authority has the right to see, and whether there
are any conditions on that access, or
• what happens to information that is in the contractor’s possession at
the termination of the contract eg whether it remains with the contractor
or reverts to the authority.
19. Clauses containing indications such as these can be of help in
establishing what is held on behalf of the public authority. "
Q1. Please supply a copy of the contract[s] between NEPO and Bloom
for the services provided?
Q2. What information is Bloom required to provide NEPO with for
reporting and monitoring purposes?
Q3a. What information held by Bloom does NEPO have a right to see?
Q3b. What conditions (if any) apply to NEPO access to information held
by Bloom?
Q4. On termination of the NEPO contract with Bloom does information
remain with Bloom or does it revert to NEPO?
Yours faithfully,
Dave Orr
NEPO’s response:
Thankyou for your Freedom of Information request received
19th November
2020, and your clarification dated
16th December 2020, confirming NEPRO(2)
as the contract in question.
Please find response to the questions asked below:
Q1. Please supply a copy of the contract[s] between NEPO and Bloom
for the services provided?
Please find attached to this response a copy of the NEPRO(2) Framework
Agreement between NEPO and Bloom Procurement Services Ltd.
In respect of the disclosure of the Framework Agreement, some of the
information contained within the document we are unable to provide, as it is
exempt from disclosure under the following sections of the of the Freedom of
Information Act 2000.
- Section 40(1) of the Freedom of Information Act 2000.
- Section 43(1) of the Freedom of Information Act 2000.
- Section 43(2) of the Freedom of Information Act 2000.
Section 40(1) – of the Freedom of Information Act 2000 (the Act)
provides that:
“Any information to which a request for information relates is exempt
information if it constitutes personal data of which the applicant is the data
subject”
Section 43(1) of the Freedom of Information Act 2000 (the Act) provides
that:
“Information is exempt information if it constitutes a trade secret.”
Section 43(2) of the Freedom of Information Act 2000 (the Act) provides
that:
“Information is exempt information if its disclosure under this Act would, or
would be likely to, prejudice the commercial interests of any person (including
the public authority holding it)”.
In this instance, we believe that disclosure of the information requested would,
or would be likely to, prejudice the commercial interests of the North East
Procurement Organisation (NEPO) and its members. We also have reason to
believe that disclosure of this information would prejudice the commercial
interests of our suppliers who deliver the agreement and other live contracts
we have in our Collaborative procurement work programme.
NEPO and its members would be likely to suffer prejudice to its commercial
interests if the withheld information were to be disclosed as it would result in it
losing the confidence of its suppliers and bidders if such commercially
sensitive information were subsequently disclosed.
The reason that we believe the exemptions apply is that the information
disclosed would possibly allow those who access the information to gain an
unfair advantage over current live contracts and would harm the relationships
NEPO holds with its suppliers.
This exemption is subject to the public interest test.
Public Interest Test
There is an inherent public interest in ensuring that the NEPO receives value
for money in procuring works, goods and services. This is because NEPO has
a duty to its clients to provide a high delivery of services that achieve the best
possible price for works, goods and services contracts. This in turn ensures
that public money is used to best effect.
We recognise that transparency in procurement is important in enabling the
public to hold public sector organisations to account for the spending of public
money. However, in this case, we believe that the balance of public interest
lies in favour of maintaining the exemption, as disclosure of commercially
sensitive material would harm NEPOs ability to operate effectively and work in
confidence with its suppliers.
As a result, we are refusing part of your request under
- Section 40(1) of the Freedom of Information Act 2000.
- Section 43(1) of the Freedom of Information Act 2000.
- Section 43(2) of the Freedom of Information Act 2000.
You have the right to request an internal review of our decision to apply this
exemption.
Q2. What information is Bloom required to provide NEPO with for
reporting and monitoring purposes?
Under the NEPRO(2) Framework Agreement, Bloom Procurement Services
Ltd is required to provide NEPO with Key Performance Indicator information
and Management Information relating to the activity under the Framework
Agreement.
NEPO contractually has the ability to monitor the performance on the Neutral
Vendor against all of the specified KPIs within the Framework Agreement.
However these measures are one element of what is used to identify and
monitor the performance of a contract or supplier, in cases where a supplier
or contract is performing well, all of these mechanisms may not be fully
deployed or required to be reported during the lifetime of the contract term.
Alternatively, if areas of the contract are underperforming or supplier
performance issues are raised, NEPO has the ability to fully deploy all of the
reporting mechanisms assigned and agreed within the Framework
Agreement.
NEPO understands and recognises the additional costs associated with
reporting for suppliers, including the increase in manhours and resource
needed to develop and maintain these performance records, therefore for
each contract NEPO applies a logical and proportionate approach to the
monitoring of supplier activity against the KPIs into the Framework
Agreements.
Under the NEPRO(2) Framework Agreement the following KPIs are available:
- SPS Projects delivery against budget.
- Evidence of any savings achieved through SPS Projects.
- SPS Provider day rates.
- SPS Projects delivery against timescales.
- Scope creep avoidance.
- Volume of SME’s engaged/successful.
- Volume of local SME’s engaged/successful.
- Contracting Authorities Local Suppliers/SMEs used.
- Post SPS Project Contracting Authority satisfaction.
- Time taken to pay SPS Providers upon receipt of invoice.
- On time Management Information.
- Accredited SPS Provider audit.
- Adherence to agreed process for Accreditation.
- Adherence to agreed process for Engagement and Appointment.
- Framework usage by North East Contracting Authorities.
- Volume of SPS Projects advertised via the NEPO Portal.
- IR35 mitigation
Under the NEPRO(2) Framework Agreement Bloom Procurement Services
Ltd may also be required to provide the following Management information for
reporting and monitoring purposes:
- Contracting Authority name.
- SPS Providers invited to participate in engagement process.
- Appointed SPS Provider.
- Engagement Process evaluation information.
- Project title.
- Call-Off Contract agreed date.
- SPS Project start date.
- SPS Project end date.
- Planned SPS Project duration.
- Planned SPS Project budget.
- Actual SPS Project cost.
- SPS Project savings.
Q3a. What information held by Bloom does NEPO have a right to see?
As above NEPO has a right to request any KPIs and Management Information
reasonably held relating to the activity under the NEPRO(2) Framework
Agreement.
As NEPO is subject to the requirements of the FOIA and the Environmental
Information Regulations, NEPO has the right to request information from the
Neutral Vendor in the form that NEPO reasonably requires to support with
such request.
The Neutral Vendor may make representations to NEPO as to whether or not,
or on what basis, information requested should be disclosed and whether
further information should reasonably be provided in order to identify and
locate the information requested. Any information deemed to be commercially
sensitive to either parties’ commercial interests will not be applicable to the
FOIA.
Q3b. What conditions (if any) apply to NEPO access to information held
by Bloom?
NEPO will be subject to conditions agreed within the Framework Contract,
such as disclosure of information to the public would constitute a breach of
confidence or the information may be deemed commercially sensitive. If such
information is deemed commercially sensitive and would harm any parties’
commercial interests, then this information would be excluded from NEPOs
requests to access.
The following information is deemed to be commercially sensitive and NEPO
does not have rights to access:
- The identity or any information in respect of any Appointed SPS
Provider or the terms of or any parties action or omission in respect of
any SPS Sub-Contract
- Any information in respect of any Contracting Authority or the terms of
or any parties action or omission in respect of any Call-Off Contract or
Work Order, other than the identity of any Contracting Authority
- Any details of Intellectual Property Rights, databases, know how or
other information provided by the Neutral Vendor to NEPO or any
Contracting Authority whether in respect of the Neutral Vendor, any
Appointed SPS Provider or in respect of any other party
- Any details of Intellectual Property Rights, databases, know how or
other information ascertained by NEPO or any Contracting Authority
whether in respect of the Neutral Vendor, any Appointed SPS Provider
or in respect of any other party as a result of being a party to this
Agreement or the Call-Off Contract
- Any details relating to the performance of the Neutral Vendors or any
Appointed SPS Provider under this Agreement, any Call-Off Contract
or Work Order, including in respect of Key Performance Indicators to
the extent that such information goes beyond the reporting
requirements of the Neutral Vendor under this Agreement or any Call-
Off Contract
Q4. On termination of the NEPO contract with Bloom does information
remain with Bloom or does it revert to NEPO?
Excluding any KPI and Management Information, upon expiry or termination
of the NEPRO(2) Agreement, the information held by either party, shall return
to the other party the originals and any copies of any documents or materials
in its possession or control (including those stored electronically) which
contain or record any of the confidential information of the other party or which
have been provided to it by another party and, no party shall be under any
further obligation to the other party.
RIGHT TO REVIEW
You may apply to the Managing Director, Guildhall, Quayside, Newcastle
upon Tyne, NE13AF, for an internal review of the decision. This will be a fresh
consideration of your request by a more senior officer. If you wish to request a
review must do this in writing within 40 days of receipt of this letter.
Following the internal review if you are still unhappy you have a right of
appeal to the Information Commissioner as specified below.
You may apply under Section 50 of the Act to the Information Commissioner
at the address given below
Information Commissioner, Wycliffe House, Water Lane, Wilmslow, Cheshire
SK9 5AF
For a decision whether, in any specified respect, a request for information
made by you to the Department/office has been dealt with in accordance with
the requirements of Part 1 of the Act.
The Information Commissioner shall consider the matter fully and make a
fresh decision.
Yours Sincerely
North East Procurement Organisation Governance Team.