Trade Law Panel
RM6183
Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) Contents
Key Information 4
Introduction 5 Purpose 5 Background 5 Who can use the Panel 5 Features and Benefits 6
Panel Scope 7 Lot Structure 7 Specialisms 8 Jurisdictions 11 Panel Timeframe 11 Available supplier personnel 11 Panel rates 15 Volume discounts 17 Requirement to bid 17
How to use this Panel Agreement 18 Available award procedures 18 Choosing a suitable call-off award procedure 19 Supplier down-selection 22 Available down-selection tools 23 Supplier Capability Matrix 23 Supplier engagement 24 Developing a specification 24 Award criteria 26 How a further competition works 27 How a direct award works 29 Alternative fee arrangements (AFAs) 29 Call-off contract and Order Form 30 Further considerations 33
Contract management and exit 34
Value added services 35
Other guidance areas 36
2 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Secondments 36 Consortia and subcontractors 36 Sensitive, Secret and Top Secret information 37 Exceptions Process 37
3 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Key Information
Panel Reference: RM6183
Panel Title: Trade Law Panel
Start Date: 1st February 2021
End Date: 30th January 2025
Accessible to: ● All Ministerial and Non Ministerial UK Government Departments, including their Executive Agencies and other subsidiary bodies; ● UK devolved administrations in Scotland, Wales and Northern Ireland and their respective agencies and other subsidiary bodies.
A full list eligible users can be found in the Authorised Customer List set out in the OJEU contract notice.
OJEU Contract Notice https://ted.europa.eu/udl?uri=TED:NOTICE:314885-202 0:HTML:EN:HTML&tabId=1&tabLang=en
OJEU Award Notice
Available call-off procedures: ● Further Competition ● Direct Award
Mandated quality weightings ● Minimum: 10% Price/Quality ● Maximum: 90% Price/Quality
Contact Details Agreement Manager (RM6183)
0345 410 222 / [email protected] CCS Website and further https://www.crowncommercial.gov.uk/agreements/RM61 documentation: 83
4 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
1. Introduction
1.1. Purpose
This guidance is designed to help customers buy specialist legal services in connection with international trade using the Trade Law Panel Agreement (RM6183) (the “Panel Agreement” or “Panel”).
This document is not a legal document and is to be used as guidance only.
1.2. Background
This Panel has been established by CCS in partnership with the Department for International Trade to provide a simple and legally compliant route to market for the purchase of specialist trade law advice and support.
The Panel is the recommended vehicle for all international trade law services required by buyers. Its purpose is to complement existing government legal frameworks and specifically assist with international trade law, disputes, and negotiations. It is the recommended route to market whenever trade is the primary element of a given matter.
1.3. Who can use the Panel
This Panel can be used by all Central Government departments and their associated bodies, both Ministerial and Non Ministerial. This also includes their public sector buying organisations. The devolved administrations in Scotland, Wales and Northern Ireland together with their respective agencies and their other subsidiary bodies are also able to use this Panel Agreement.
Full details of all bodies eligible to use this Panel can be found in the Authorised Customer List set out in the OJEU contract notice.
All relevant documentation relating to this Panel can be found on the CCS website detailed at the beginning of this document.
5 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 1.4. Features and Benefits
● Specialist scope: this Panel provides access to several different legal specialisms in relation to international trade law and trade disputes and negotiations. A full list of these specialisms can be found in section 2.2.
● Market leading expertise: the Panel provides access to worldwide legal expertise providing a market leading level of service in the specialism of international trade law.
● Flexible route to market: Buyers can access the market in one of two ways, depending on their timescales and requirements - further competition, including accelerated competitions, and direct award.
● Ease of route to market: the Panel Agreement provides a simple and streamlined route for customers to access a comprehensive range of external legal firms with the right expertise.
● Competitive rates and alternative fee arrangements (AFAs): the Panel Agreement offers delivery of cashable savings through competitive rates which offer significant reductions against market rates. The Panel also enables the use of AFAs.
● Volume discounts: many suppliers have provided competitive volume discounts on their rates and must, at a minimum, offer the discount stated in their panel rates as based on the number of hours worked. Further information can be found in section 2.7. ● Flexible terms and conditions: the Panel Agreement facilitates various attractive commercial terms, as based on the Public Sector Contract, including alternative pricing models and the ability to set your own liability caps up to a maximum level.
● Access to further value added benefits: the Panel delivers a number of benefits from suppliers for no additional cost. These include access to secondments, knowledge transfer/sharing, collaboration and an initial consultation of up to 2 hours at the beginning of each Call-Off Contract at no cost to the buyer.
● Foreign exchange rate tracking: Panel rates are tracked annually by CCS against Foreign Exchange Rates for US Dollars or Euro, depending on supplier preference.
● CCS Panel management: regular Panel contract management activity includes annual auditing of quality, benchmarking, quarterly KPIs and monthly gathering of management information. These activities reduce the risk of failure between buyers and suppliers.
6 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 2. Panel Scope
2.1. Lot Structure
This Panel is structured in 2 lots:
Lot 1 - International Trade and Disputes Advice and services in relation to the mitigation and conduct of disputes under the World Trade Organisation (WTO) and trade agreement dispute settlement mechanisms, compliance with and enforcement of international law relating to trade, including the law of WTO and trade agreements.
There are 15 suppliers listed under this Lot:
Baker & McKenzie LLP Sidley Austin (CE) LLP Bryan Cave Leighton Paisner LLP Steptoe & Johnson UK LLP Clifford Chance LLP Tereposky & DeRose LLP Dentons UK and Middle East LLP TLT LLP Fieldfisher LLP Van Bael & Bellis Freshfields Bruckhaus Deringer LLP White & Case LLP Linklaters LLP Wilmer Cutler Pickering Hale and Dorr LLP Pinsent Masons LLP
Lot 2 - International Trade and Negotiations Advice and services in relation to the negotiation and implementation of trade agreements and trading relationships, and compliance with and enforcement of international law relating to trade, including the law of WTO and trade agreements.
There are 11 suppliers listed under this Lot:
Ashurst LLP Fieldfisher LLP Bryan Cave Leighton Paisner LLP Sidley Austin (CE) LLP Burges Salmon LLP Steptoe & Johnson UK LLP Clifford Chance LLP TLT LLP Dentons UK and Middle East LLP Wilmer Cutler Pickering Hale and Dorr LLP DLA Piper UK LLP
7 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
2.2. Specialisms
Suppliers are required to provide legal services in respect of all of the mandatory specialisms and services listed for each lot. Suppliers may also provide one or more of the optional specialisms listed below.
These mandatory and optional specialisms are high-level descriptions of types of legal services and areas of legal practice which suppliers can offer under this Panel. This list is not exhaustive.
Buyers can seek advice from suppliers in respect of any type of legal service or area of legal practice that falls within the scope of one of the mandatory or optional specialisms listed, regardless of whether the required type of legal service or area of legal practice is specifically described or listed beneath the relevant heading.
8 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Lot 1 (International Trade and Disputes) Specialisms
Mandatory Optional
● legal advice on and support for ● legal advice and services to the Buyer international trade disputes, including on international investment law, but not limited to: acting on behalf of including handling investment disputes government in offensive and/or under international treaties defensive disputes ● legal advice and services to the Buyer ● legal advice on all stages of on trade remedies investigations international trade disputes including but not limited to at Framework and/or ● legal advice in relation to recognition Appellate Body level at the WTO (for agreements and arrangements, both offensive and/or defensive participation agreements, and wider disputes) trading arrangements, relationships or instruments ● legal advice on the prevention of international trade disputes (e.g. checking new or existing policies or draft legislation for disputes risks)
● legal advice on trade remedies
● advice on international law relating to trade including but not limited to compliance with the law of the WTO and of international trade agreements.
● advice on the domestic law of different jurisdictions in the context of international trade and/or actual or potential disputes including via in-house, multiple offices or subcontracting services.
● advocacy in WTO disputes, including but not limited to advocacy before the Appellate Body, on behalf of the Buyer and to demonstrate the ability to meet this requirement by the start of the Framework.
9 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Lot 2 (International Trade and Negotiations) Specialisms
Mandatory Optional
● legal advice in the context of trade ● legal advice on international investment negotiations, including but not limited to: law, including supporting the Free Trade Agreements (FTAs), negotiation of international investment multilateral negotiations, and treaties and investment chapters of negotiations in the WTO FTAs
● legal advice on the full range of ● legal advice on legal barriers to market chapters in an FTA access in the context of trade negotiations ● legal advice in the context of the implementation of trade agreements, ● legal advice in the context of the including but not limited to the WTO and negotiation and implementation of: FTAs recognition agreements and arrangements, participation ● advice on international law relating to agreements and wider trading trade including but not limited to arrangements, relationships or compliance with the law of the WTO instruments and of trade agreements ● legal advice on international treaty law. ● advice on the domestic law of different jurisdictions in the context of international trade and/or negotiations including via in-house, multiple offices or subcontracting services.
The Supplier Capability Matrix lists which suppliers are able to provide optional specialisms, and in which jurisdiction.
10 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 2.3. Jurisdictions
The Panel has been established for the provision of international trade law advice and has an extremely broad coverage of jurisdictions.
The full list of jurisdictions covered under this Panel by each supplier can be found with the Supplier Capability Matrix.
This matrix shows the jurisdictions where firms have already confirmed that they can provide legal advice. However buyers are able to ask suppliers to advise in additional jurisdictions if required.
2.4. Panel Timeframe
This Panel Agreement has been established for 4 years.
You can use this Panel to place call-off contracts up to the Panel’s expiry date of 30/01/2025. All call-off contracts placed under this Panel Agreement must expire/conclude no later than 2 years following the Panel’s expiry date (i.e. 30/01/2027).
2.5. Available supplier personnel
All suppliers are able to provide personnel for 7 different fee-earner grade bands for each jurisdiction that they have indicated they operate in. A short description of each grade band is noted below, along with a list of positions that typically fall within each of these grade bands. The full contractual description of each grade band is set out in Attachment 1a of Framework Schedule 1 (Specification).
11 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Grade band descriptors
Grade Positions which typically Grade descriptor Band fall within grade band
1 Senior Counsel / Senior ● typically expected to have 20+ years’ PQE, Partner including considerable practical and/or academic experience ● considered expert in the relevant field
2 Partner, Counsel, Legal ● typically expected to have 10-20 years’ PQE Director ● main point of contact for day-to-day Buyer liaison (for more complex/significant and non-routine matters) ● considered an expert in the relevant field ● overall responsibility for quality assurance, success of project and supervision of Supplier personnel ● overall responsibility for working within budgets agreed as part of a Legal Services Contract ● appropriate direct contribution to complex/important legal matters relating to a legal services contract
3 Senior Solicitor, Senior ● typically expected to have 5-10 years’ PQE Associate ● substantive experience and proficiency in the relevant field ● day-to-day matter management ● significant level of quality assurance ● appropriate direct contribution to difficult/important legal matters relating to a legal services contract
4 Solicitor, Associate ● typically expected to have 3-5 years’ PQE ● main contact for day-to-day buyer liaison (for simple and routine matters)
5 NQ Solicitor/ Associate, ● performing work that requires the level of Junior Solicitor/ Associate expertise typically requiring up to 3 years’ legal experience in the relevant or similar field of work
12 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Grade band descriptors (continued)
Grade Positions which typically fall Grade descriptor Band within grade band
6 Trainee ● individuals who are undergoing their legal training contract or equivalent tend to fall within this grade band ● experience in the relevant field of work or similar is not required.
7 Paralegal, ● individuals who provide administrative and Legal Assistant legal support tend to fall within this grade band ● experience in the relevant field of work or similar is not required.
Optional personnel In addition to the 7 fee-earner grade bands outlined above, some suppliers are also able to provide the following personnel:
Grade Band Typical Positions which Grade Description Years’ typically fall within Relevant grade band Experience
Senior Analyst 4+ Senior Analyst ● typically 4+ years’ relevant experience ● main day to day contact ● responsibility for the quality assurance, management and supervision of the analysis ● proven track record of providing analysis in support of legal arguments and in trade disputes, or in other similar environments, would be desirable.
Analyst 2+ Analyst, Associate ● typically 2+ years’ relevant Analyst, Research experience Associate, ● junior analyst supporting the Research Officer analytical team with conducting and writing up the analysis
13 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Optional personnel (continued)
Grade Band Typical Positions which Grade Description Years’ typically fall Relevant within grade band Experience
Senior Modeller 5+ of Senior Modeller, ● typically 5+ years’ of relevant modelling Senior modelling experience experience Econometrician, ● skilled modeller with significant Senior Analyst experience of applying economic models to estimate real world policy impacts – in particular partial equilibrium and gravity modelling ● will have responsibility for designing the modelling approach and leading the completion of the modelling and analysis ● main contact on the analytical detail and modelling ● proven track record of providing analysis in support of legal arguments and in trade disputes, or in other similar environments, would be desirable. Modeller 3+ of Modeller, ● typically 5+ years’ of relevant modelling Econometrician, modelling experience experience Analyst, Associate ● skilled modeller with some Analyst experience of applying economic models to estimate real world policy impacts – in particular partial equilibrium and gravity modelling ● junior analyst supporting the senior modeller in designing the modelling approach and completing the modelling and analysis
Details of the suppliers able to offer these can be found within the Supplier Capability Matrix.
14 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 2.6. Panel rates
Maximum panel rates Each supplier has set out its maximum chargeable rate per hour for each grade of personnel in each of the jurisdictions where they can provide expertise.
Although there is scope for discounts against these rates, suppliers must not charge in excess of their maximum rates except in the following limited circumstances:
● the supplier is using a subcontractor who is advising on a jurisdiction or optional specialism not provided by the Supplier or any key named subcontractors or members of the Group of Economic Operators in the Framework Tender Response; and
● the supplier demonstrates through the provision of supporting evidence such as Open Book Data that this is an accurate reflection of the charges and that no mark-up or additional margin has been added.
Where applicable, these charges must be agreed by the buyer in accordance with Joint Schedule 6 (Key Subcontractors).
Panel Rate Card The maximum panel rates for each supplier is listed in the Panel Rate Card. You can download a copy of this by contacting our Customer Service Centre via [email protected].
All Panel rates are in Pounds Sterling (GBP).
15 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
I ndexation of pricing in response to Foreign Exchange Rates Given the international nature of services provided under this Agreement, Panel rates are tracked against the Foreign Exchange (forex) Rate in either US Dollars (USD) or Euros (EUR) against GBP, depending on supplier preference at the start of the Agreement.
Rates are tracked annually, on the anniversary of the Agreement, against 3 standard currency fluctuation thresholds: 3%, 5% and 10%. If over the previous 12 months the forex rate exceeds either of these thresholds in comparison to the forex rate at the Panel Commencement Date, then an automatic increase in maximum panel rates of either 3%, 5% or 10% is applied accordingly. The rates will revert back to the original Panel rates each year unless the exchange rate threshold continues to be met or is further exceeded. Increases will not be cumulative.
An extreme events pressure release is also included where USD or EUR increase 15% or more against GBP over a period of 3 months or more. An automatic rate increase is not applied, but suppliers may apply for a temporary increase in maximum framework rates providing they are able to demonstrate sufficient justification in writing. The extreme events increase, if granted, is time-limited.
Rate increases will be managed by CCS and the Panel Rate Card will be updated following this. Please make sure that you obtain the most up to date version of the Panel Rate Card before referring to these rates before/during your procurement activity.
Rate increases will only apply to the maximum rates that can be charged under the Panel Agreement. These shall not affect the rates payable by a Buyer under a Call-off Contract in force at the time the automatic increase is applied.
You may wish to consider applying similar mechanisms to those listed above when running your call-off contracts, particularly where currency fluctuation poses a risk.
16 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
2.7. Volume discounts
If the number of hours worked on your matter/contract is in excess of 500, then you may be able to apply a “volume discount” to all hourly rates. This applies to both Lots 1 and 2.
When submitting a tender for this Panel, all suppliers were asked to provide a volume discount that could be applied to the number of hours worked per contract during/after the following break points:
● 500 > 999 hours ● 1000 > 2999 hours ● 3000+ hours
Where these were provided, then these discounts will become applicable to a supplier’s maximum panel rates. These discounts may be increased further if competed at call-off level, at each supplier’s discretion.
Further information on these discounts can be found in the Panel Rate Card, which can be requested via [email protected].
2.8. Requirement to bid
Suppliers are under no obligation to bid for any of the opportunities presented to them via this Panel Agreement.
The hints and tips provided in this document around supplier engagement and building a good specification may also help maximise supplier competition.
17 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 3. How to use this Panel Agreement
3.1. Available award procedures
Overview There are 2 ways in which you can instruct a supplier to act under this Panel: a further competition between multiple suppliers or a direct award to one supplier.
As part of the further competition procedure, you may conduct an “accelerated competition" - a further competition which is conducted in shorter time frames than normal, to address the urgency of buyer’s needs whilst providing best value for money.
Differences in procedures The differences between each of the 2 available procedures are summarised below:
● Further competition: a list of suppliers are invited to bid for your requirement. An award is made to the “winning” supplier based on the award criteria used for your competition, which should be set in line with the Panel’s further competition award criteria. Suppliers may be able to offer discounted rates, including volume discounts, in a further competition. Timescales are variable and factors such as urgency and complexity contribute to these.
● Direct award: is an award made directly to one supplier without any further competition. Supplier prospectuses are used to establish the most economically advantageous solution, in line with the direct award criteria. Fees for a direct award should be based on maximum panel rates or AFAs based on those rates. Volume discounts may be available, depending on your selected supplier, and can also be taken into consideration when making your selection.
Further instructions on how to award a contract via these procedures can be found in Framework Schedule 7 (Call off Award Procedure).
18 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Accelerated competitions In accordance with Framework Schedule 7, you may choose to accelerate your further competition by reducing the competition timescales, the number of questions, and/or the length of evaluation responses. This should be based on factors such as the urgency, value, and the relative complexity of the requirement and should be solely at your discretion.
An accelerated competition will allow for a further competition of rates and a further basic assessment of quality where direct award would not. This could drive better value for money than by placing a direct award.
Buyer responsibility In all cases, the customer undertaking the engagement is the body responsible for the compliance of that process. Therefore, you should ensure that you are complying with your own departmental governance processes prior to engaging a supplier, and take any legal advice that you feel is appropriate when deciding on the type of award procedure, drafting the tender documentation, call-off contract, pricing schedule and award questions.
3.2. Choosing a suitable call-off award procedure
Things to consider when choosing your call-off award procedure Each of the methods listed above are compliant with the Panel, providing you:
● follow the process set out in Schedule 7 of the Panel Agreement, as summarised in sections 3.8 and 3.9 ● take into account the time and costs it will take to run a further competition for both you and suppliers, particularly in the case of relatively small amounts of work (it is recommend that for work estimated to cost under £50,000 you consider a direct award) ● follow the principle that all panel firms are treated fairly and equally.
19 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Key considerations Some key considerations to help you decide the right route to market for your matter are set out below. These consideration points are for guidance only and are not mandated. This list is not exhaustive.
Areas of Guidance Consideration Further competition Direct award
Anticipated value You feel that a competition will You feel that the cost of a full be able to demonstrate savings procurement process (including the against the panel rates that will bid costs of the suppliers you ask exceed the costs of the time to bid) is likely to outweigh any spent in running the savings that you could get from a procurement. competition for the matter.
Typically greater than £50,000, Typically, you should consider this with this figure being suggested route if you expect the legal fees to and not mandated. be lower than £50,000 in total, although this figure is suggested and not mandated.
Timescales Requirements where the Urgent requirements where the competition process would not delays caused by a competition be detrimental to the outcome, process would be detrimental to regardless of how quickly these the outcome, regardless of how are conducted. quickly these are conducted.
Previous experience Suitable for new work or where A supplier has previously worked previous work performed by a on your project and: panel firm is not certain to achieve additional savings and a) it would be detrimental to is not fundamental to the project delivery if the same outcome. panel firm did not complete the work; and/or
b) it is certain that greater savings and/or the best outcome can be achieved by re-instructing the same panel firm.
20 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Key considerations (continued)
Areas of Guidance Consideration Further competition Direct award
Capability EOI/RFI/Prospectus review has EOI/RFI/Prospectus review has identified that multiple panel identified that only one panel firm firms have the expertise to has the expertise to deliver the deliver the service service requirements. requirements.
Conflicts of Interest Identification of conflicts of Identification of conflicts of interest interest via internal procedures via internal procedures or or responses to EOI/RFI responses to EOI/RFI means that means that multiple panel firms only one panel firm can deliver the can deliver the service service requirements. requirements.
Value for money You wish to consider AFAs not You are satisfied from the based on panel rates, or pricing prospectuses that the firm selected models which differ from the has the relevant expertise to perform “time and materials” Panel rates. the work to the requisite standard, and represents effective value for money.
Further information can be found in Framework Schedule 7 (Call-Off Award Procedure).
21 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
3.3. Supplier down-selection
Supplier down-selection is an effective way of determining the number of suppliers capable of meeting your needs and reducing the number of suppliers you invite to participate in your competition.
There are a number of different tools that can be used as part of the down-selection process to determine supplier capability or expertise, capacity, conflicts and to factor in pricing considerations.
An outline of which down-selection tools will help you to assess different aspects of the suppliers’ ability to deliver your requirement are set out below:
Guidance
Down-selection Supplier Supplier Price Conflicts of tool capability/expertise capacity/interest interest
Supplier X prospectus
Supplier X Capability Matrix
Expression of X X X Interest (EOI)
Panel rates X
Volume X discounts
22 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Conflicts of Interest Conflicts of interest can be tested as part of any competition process.
Where other down-selection tools have identified that one supplier is best placed to deliver the requirement, conflict of interest checks can be incorporated in the direct award process.
Where multiple capable suppliers have been identified through a review of prospectuses and the Capability Matrix, a Conflict of Interest check as part of an EOI process will help to identify if any suppliers are unable to deliver your requirements due to conflicts of interest.
3.4. Available down-selection tools
P rospectuses To help you select the right Panel firm, each supplier has developed an up to date prospectus setting out details of their capabilities and experience in relation to each specialism they provide. Links to these can be found in the RM6183 Supplier Prospectus Links document.
The prospectuses should be used to identify the most suitable supplier for a direct award, or to down-select Panel firms to invite to a further competition.
Please note that we do not recommend the use of external rankings such as Legal 500 or Chambers in the selection of Panel firms.
S upplier Capability Matrix The Supplier Capability Matrix is a table that illustrates the specialisms and jurisdictions that each supplier has offered as part of their Framework Tender Response.
Buyers are able to refer to the Supplier Capability Matrix to aid in their supplier selection process. This matrix also indicates the suppliers who are able to provide the optional specialisms in each lot and in which jurisdiction.
Panel Rate Card Where it is evident that a number of suppliers can do the work, you should consider the maximum panel rates of each the firms, bearing in mind the rates for the fee earner who is likely to do the bulk of the work and/or obtain a fee quote from your selected supplier to ensure that your selection represents value for money and is within your anticipated budget.
23 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
3.5. Supplier engagement
Early engagement with suppliers before you issue your tender documents can help suppliers better understand your needs whilst helping you develop a more focused specification. This could lead to a more efficient tendering process and has the potential to increase supplier interest, attract innovative solutions and reduce potential clarifications.
Supplier engagement can be conducted in a variety of ways, such as organised events, conference calls, webinars and expressions of interests, to name but a few.
Whichever way you decide to engage with suppliers, it’s important to remember that fair and equitable treatment is paramount.
Here are some hints and tips on engaging with suppliers:
● make all relevant suppliers aware of the opportunity at the earliest opportunity ● consider advising suppliers of your proposed timescales, if known ● if sharing sensitive information with suppliers then consider requesting a signed non-disclosure agreement (NDA) ● if you require market intelligence or have a specific question for which you require supplier input then consider issuing a request for information (RFI) ● share your draft documents (including your specification) with suppliers and invite feedback
3.6. Developing a specification
What is a specification? A specification is a statement of the requirements that needs to be met by suppliers in the delivery of your contract. This document will form the basis of your procurement and any resultant call-off contract. The more detailed the specification for the work is, the more able the Panel firms will be to provide you with a robust quality bid and fee quote.
What should a good specification include? A good specification should include the following details:
24 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
● Purpose - the purpose of the overall project or engagement ● Scope and deliverables - a clear description of the services that you are expecting your chosen supplier to deliver, including what is in or out of the scope of your contract, the types of advice you are looking for the supplier to provide, and what elements you would like them to refer back to the customer department
● Key areas of expertise - to include any areas where advice will be provided by the in-house team; be as clear as possible about the level of specialist support you will want from the Panel firm
● Engagement - outline the level of interaction that you will want your supplier to have with you, the internal legal team and / or the project team
● Contract duration - how long you wish the relationship to go on for (contract duration), including any options to extend the contract beyond the initial term
● Volumes of work - detail what the anticipated volume of work will be, including any known peaks and troughs. If you are unsure of this then make this known.
● Distribution of work - where you require a contract with more than one supplier, be transparent in how the work will be allocated (e.g. rota basis; one main firm, with others as overflow). Consider how you will manage any conflicts of interest that arise on individual matters in this instance.
● Secondments - details of any required secondments that you need to support the matter at any point during the project
● Subcontracting - details of whether subcontracting is permitted within your contract and how you want this to work for your specific requirement
● Assumptions - detail any assumptions that you are making in relation to the work, and flexibilities that may be required through the duration of the project (if any).
● Project management - include details of any project management of the legal services that you need
● SLAs/KPIs - include details of any timescales or deadlines for the engagement and detail how these will be reviewed and monitored throughout the contract. Also include details of any remedies for failure to reach these targets.
● Reporting - what level of reporting and contract management you wish to have throughout the lifetime of your contract/requirement
● Exit management - make the supplier aware of how you want exit or project closure to work, including engagement with any future providers if necessary.
Your specification does not need to be fully complete if you anticipate using market engagement as a way of building your understanding of how a Panel firm could meet your requirements.
25 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Setting your liability cap The limitation of liability for each year of any call-off contract is (in aggregate) no more than the greater of £5 million or 150% of the contractual Estimated Yearly Charges, unless specified in your Call-Off Order Form. Clause 11 of the Core Terms further details this.
Under this Agreement, you are able to change your liability caps where you have made an appropriate risk assessment and sought the necessary management approvals. Unlimited liability is not permitted. For services under this Panel the standard recommendation is for liability to be capped between £30,000,000 and £70,000,000 based on an appropriate risk assessment.
3.7. Award criteria
Call-off contracts should be awarded on the basis of most economically advantageous tender ("MEAT").
Further competition The following criteria and weightings shall apply to the evaluation of tenders received through the further competition procedure, including accelerated competitions.
Criteria Relative percentage weighting
Quality minimum 10% / maximum 90%
which includes but is not limited to the following criteria:
● added value / innovation ● social value ● approach to delivery of the services ● implementation ● use of supply chain / partners
Price minimum 10% / maximum 90%
26 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Direct award The following criteria and weightings shall apply to the evaluation for direct award:
Criteria Relative percentage weighting
Quality minimum 10% / maximum 90%
including but not limited to:
● relevant jurisdictions and specialisms ● service fitness for purpose ● experience and availability of staff
Price minimum 10% / maximum 90%
(total costs, cost effectiveness & price)
3.8. How a further competition works
The following steps should be taken when running a further competition:
a) develop your specification and identify the suppliers capable of meeting your needs - this could include completion of a down-selection exercise or market engagement, if required
b) use Framework Schedule 6 (Order Form Template and Call-Off Schedules) to amend or refine your contract deliverables, including liability caps
c) develop your further competition award criteria - this will form the basis of your decision to award your call-off contract
d) invite all identified suppliers to submit a tender in writing - this could be by email or via your preferred e-Sourcing tool (contact details for each supplier representative can be found in the RM6183 Supplier Contacts document)
e) set a time limit for the receipt of the tenders, considering factors such as the complexity of the requirement/tender response and the time needed to submit tenders
27 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
f) keep each tender confidential until the time limit set out for the return of tenders has expired
g) apply your published award criteria to each submitted tender
h) award your call-off contract by sending a completed and signed Framework Schedule 6 to the successful supplier, who should promptly sign and return this (this can be done electronically)
i) provide unsuccessful suppliers with written feedback on why their tenders were unsuccessful
j) publish your contract on Contracts Finder for transparency purposes.
Accelerated further competition Where an accelerated competition is required, the steps outlined above will need to be followed, however:
● your time limit for tender returns will be shorter and will be driven by the urgency and/or complexity of your requirement
● your award criteria should be appropriate to your timelines and you should consider simplifying your evaluation questions, reducing the number of questions you intend to evaluate or applying restrictions to tender submissions, such as limiting the number of words/pages used
● you must explicitly state in your tender documents that your procurement is being run via the “accelerated competition” process.
When conducting your further competition, you may also be able to reduce timescales by:
● conducting a down-selection exercise to limit the number of suppliers invited to bid (you must invite a minimum of 2 suppliers regardless of which Lot you use, however it is recommended that for accelerated competitions you down-select a maximum of 6 suppliers on Lot 1 and 5 suppliers on Lot 2)
● notify suppliers of the draft timelines of your procurement as far in advance as possible
● identify and prepare your evaluators in advance - secure their time for evaluation and prepare them as much as possible before the tender return date (this could include sharing your tender document, completing evaluator competency/conflict of interest
28 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
declarations, arranging access and training to any e-Sourcing systems that you may be using to evaluate bids). You could also consider arranging “reserve” evaluators
3.9. How a direct award works
The following steps should be taken when running a direct award:
a) develop a clear specification
b) Use the supplier prospectuses to establish which supplier provides the most economically advantageous solution - use these to apply the direct award criteria and to ensure that they are capable of meeting your specification
c) award the call-off contract with the successful supplier by sending a completed and signed Framework Schedule 6 (Order Form Template and Call-Off Schedules) to the successful Supplier, who should promptly sign and return this. This can be done electronically.
Direct awards will be priced based on maximum Panel rates, so you should consider whether value for money can be further obtained via an accelerated competition before awarding a direct award.
3.10. Alternative fee arrangements (AFAs)
AFAs can offer clear benefits to all parties, including greater innovation, efficiency, flexibility and transparency. Under the terms of the Panel Agreement, AFAs can be considered for both direct awards and further competitions, providing those applied to direct awards are based upon the maximum panel rates and the charges applied to further competitions do not exceed the maximum panel rates.
More details around the options available as AFA and how they can benefit your procurement can be found in our Whitepaper - Legal services: 4 Steps to a Successful Fee Structure.
29 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 3.11. Call-off contract and Order Form
Overview The main legal terms for both the Panel Agreement itself and any subsequent Call-Off Contracts have been modelled using the Public Sector Contract.
You should use the RM6183 Core Terms as the basis for all Call-Off Contracts placed under this Panel. You must also consider the inclusion of any Joint and Call-Off Schedules that may be relevant for your requirement.
All documents needed to draft your Call-Off Contract can be downloaded from the RM6183 Trade Law Panel website.
Order Form When appointing a supplier under this Panel, whether via a direct award or further competition, you must complete Framework Schedule 6 (Order Form Template and Call-Off Schedules). This schedule references the standard call-off terms and conditions (Core Terms) that your chosen supplier will need to adhere to throughout the duration of your contract, including any optional Schedules that you have selected.
When completed and executed, this schedule will form your Call-Off Contract.
You can tailor the standard terms and conditions to best suit your requirements, where possible, via the Order Form section of this schedule.
Guidance on completing the Order Form Within Framework Schedule 6 there are items which are highlighted in yellow that you will need to consider and amend as required.
You should also consider if any of the Optional Joint Schedules are relevant/required for your contract.
As a minimum, you should include the following information in the Order Form:
● Contract start and end date, including any options to extend past the initial term ● Contracting Authority ● Specification ● Pricing ● Liability Limit
30 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Further guidance is provided in Framework Schedule 6, but a few key areas of guidance are set out below:
● Liability Limits - you should ensure this is sufficient for your needs, considering the financial impact of relying on poor advice. The appropriate limit will depend on the complexity of the matter, the advice to be provided and the level of internal expertise and supervision available. You should ensure that the liability limit is set out in the draft order form sent to suppliers as part of the specification.
● Insurance - you should consider the amount of Professional Indemnity insurance that you will need your suppliers to hold. In most cases, this should be in line with the liability limit, but in cases where you have asked for a high limit of liability you should consider asking for specialist insurance advice. Firms are required to hold the following insurance cover as a minimum, which applies to a single event or a series of related events in the aggregate of: ○ Professional Indemnity Insurance: £10,000,000 ○ Public Liability Insurance: £1,000,000 ○ Employers Liability Insurance: £5,000,000 (where suppliers do not have a UK presence they are not bound by the compulsory requirement for Employers Liability Insurance but should have equivalent arrangements in place)
● Fee Mechanisms and Charges – you should consider volume discounts here, and whether there is a long term requirement (where appropriate) to track against the forex rate (in order to appropriately share risk)
● Base location - you need to specify your base location in the tender. This is generally where the majority of the project team will be, and where face to face meetings will occur. You should consider how much travelling you will be expecting the successful firm to undertake, and how much they can reasonably undertake the work from their home office, which may be overseas.
● Secondments - if you are likely to use a secondment as part of your Call-Off Contract, you will need to indicate this in your Order Form.
31 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
When to send to suppliers For further competitions, you should include a draft version of your Order Form and Call-Off Schedules with your tender documentation/bid pack. This draft version should be populated to the best of your ability so that suppliers better understand your requirement.
You should then populate a final version of this document for the successful bidder when you are awarding your contract for them to sign.
For direct awards, you should send your completed Order Form and Call-Off Schedules to the supplier for signature when you have agreed that your selected supplier will be able to do the work.
Signatures When you are appointing the successful supplier, you should ensure that your Order Form and Call-Off Schedules are signed by both the supplier and an authorised person within your organisation before any work is undertaken by the firm.
Working without a contract Suppliers are obligated to sign all Call-Off Contracts “promptly and without delay” after receiving a completed Framework Schedule 6 (Order Form Template and Call-Off Schedules).
While there are occasions where clarifications may be required, you should not ask the supplier to undertake any work prior to signing a Call-Off Contract.
Publishing your contract on Contracts Finder Where a public contract (in excess of £10,000) is awarded, within 90 days of contract award, you should publish details on Contracts Finder. If you are using a procurement portal with the help of CCS or your commercial team, this will be completed as part of that process. Otherwise, you will be required to manually upload at least the following information:
● name of the supplier ● date on which the contract was entered into ● value of the contract ● whether the contractor is a SME or VCSE ● Redacted contract document
In addition to the compulsory information listed above, we request that you also include the Agreement reference number (RM6183) in your description.
32 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 3.12. Further considerations
Is the work suitable to be completed by an external firm? You should consider whether the work that you need completed can be undertaken by your usual internal legal support, including the Government Legal Department if applicable.
Internal approval You should ensure that you have the necessary authority to begin to engage external legal support, and that you have the necessary approval required to continue through the process.
In most cases, you are likely to need a business case and budget approved by the relevant stakeholders, and you should consider engaging the following people:
● business stakeholder - support for your business case and the engagement as a whole ● your internal legal function - they may be able to assist you in developing requirements and supervising the matter with you, or working with the Panel firm, as appropriate. ● the budget holder for the relevant department – they will need to confirm that there is sufficient budget allocated ● your commercial or procurement team - they may be able to support you in procuring legal services (including using their procurement portal and ensuring the correct internal governance has been undertaken). This may include supporting you to choose the right procurement route and market engagement approach.
Please note that Cabinet Office enforce certain spend controls to help organisations reduce unnecessary spend and encourage cross-government collaboration. These controls will need to be followed in regard to any engagement.
33 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 4. Contract management and exit
Following the award of a contract you should follow good commercial contract management practice commensurate with the matter to ensure that you are able to monitor the suppliers’ performance of their obligations.
Typically this should include the following actions:
reviewing supplier performance - it is important to hold regular contract management meetings where appropriate with your supplier to ensure both parties understand their responsibilities and that they are fulfilled in accordance with the contract
contract variations - you may need to vary your contract. To do this you will need to follow the variation process as detailed in the contract order form. You may wish to speak with your commercial or procurement team for further advice
sharing best practice - you should provide details of best practice with CCS and/or GLD so that it can be shared across the public sector (if you have any feedback on the performance of the Panel firm, please contact CCS)
knowledge transfer - should be built into any contract to ensure that future reliance on external suppliers is minimised and the building of internal capability is maximised
exiting the contract - you should consider what you may need prior to the contract start, and complete the Order Form accordingly. You should start preparing for the end of the contract in advance of the expiry date. You may need to consider how you will:
● ensure the transfer of any data from the supplier to your organisation ● end any joint arrangements with suppliers ● complete any work started by the firm but not completed by the end of your contract ● share any knowledge or lessons learned from the supplier ● collect passes from suppliers (if applicable) and/or return suppliers’ equipment (if applicable) ● remove or dispose of any unwanted item
34 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 5. Value added services
Suppliers must provide as a minimum, the following additional services at no additional charge to any buyer:
● training - suppliers must provide customers with a minimum of 10 hours of free training (in aggregate) throughout the duration of this Panel Agreement (5 of these being reserved for use by DIT); this training may be bespoke or from a supplier’s current portfolio (this minimum requirement does not prevent other training being offered or arranged); information on availability of this can be sought via the Agreement Manager within CCS
● Social Value - customers are able to identify specific Social Value priorities in their call-off contracts; as standard, all suppliers must consider the inclusivity and diversity of teams providing services under this Agreement, with the aim of improving gender balance; suppliers must also appropriately consider the mental health and well-being of those providing and managing these services, with the aim to improve staff mental health and well-being
● knowledge transfer - suppliers are obliged to promote and facilitate the transfer of skills and knowledge between the parties at the end of each contract, as well as sharing information and best practice initiatives within any relevant industry
● time zone flexibility - suppliers are required to make themselves available during UK time zone working hours (typically between 08:00 and 18:00 UTC/UTC+1) and must be responsive to time-pressured queries
● 2 hours free legal advice - suppliers are obliged at the outset of each contract to provide 2 hours legal advice, free of charge
● domestic travel costs - all domestic travel costs, travel time and fee earner subsistence are included in the Panel rates, unless expressly agreed within your Call-Off Contract (this does not include international travel time and travel costs, which will need to be reasonably reimbursed following agreement with the buyer)
● know-how - suppliers are obliged to make available to you, on request and at no charge, know-how (including printed publications, e-briefings, webinars and invitations to briefings, seminars and events), as well as any legal resource available to the Supplier
35 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 6. Other guidance areas
6.1. Secondments
You are able to request both inward and outward secondments under this Panel Agreement. Where this is required then you will need to indicate as such in your contract Order Form. For all secondments, the Secondment Agreement Schedule at Annex 1 will need to be used and adhered to.
6.2. Consortia and subcontractors
Subcontractors at Agreement level A small number of suppliers on this Panel operate consortia arrangements or have subcontracted firms to undertake some of the work. These arrangements have been reviewed by CCS and DIT, and should not influence your selection decisions. If you do wish to ask questions about how these arrangements would apply to your matter, we recommend that you ask for information separately from any scored question about management of matters.
Subcontractors at call-off level Subcontracting is allowable under this Panel Agreement and may be used where a prime supplier is unable to provide the required services.
Subcontracting costs are included in the maximum panel rates, however there are instances where a Supplier may use a Subcontractor that charges above these rates. These instances will be:
● where the Subcontractor is advising on a jurisdiction or Optional Specialism not provided by the Supplier or any key named Subcontractors or members of the Group of Economic Operators in the Framework Tender Response; and ● the Supplier demonstrates through the provision of supporting evidence such as Open Book Data that this is an accurate reflection of the Charges and that no mark-up or additional margin has been added.
In all instances, the Supplier must ensure that rates are negotiated where possible to ensure value for money. These should be agreed by the Buyer in accordance with Joint Schedule 6 (Key Subcontractors).
36 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21) 6.3. Sensitive, Secret and Top Secret information
If you need to share sensitive information to one or more suppliers prior to your Call-Off Contract being signed, you should consider asking the supplier to sign a non-disclosure agreement (NDA) prior to sharing that information.
In the case of a further competition the NDA should be signed at the start of the procurement process by all suppliers that you wish to invite to bid for that further competition.
If the subject matter of the services will require supplier personnel to have access to Secret or Top Secret information, they will need to demonstrate that they hold (or agree to obtain) the required level of security clearance before receiving access to such information. Guidance in relation to the types of security clearance required is available in the Cabinet Office United Kingdom Security Vetting: clearance levels publication.
Please note that suppliers may already have some members of staff who hold the relevant security clearance, but may need others to go through the process before they can start work. You should consider whether:
● the relevant level of clearance is actually required – you may wish to seek appropriate advice from your security adviser regarding this ● it is possible to extract any top secret or secret information from the information shared to reduce the risks ● suppliers will use their own IT equipment, or whether they will need to work from your offices, using your IT
6.4. Exceptions Process
Default route to market
This Panel will be the default route to market for all Central Government Departments and their Executive Agencies who wish to access trade law advice and support.
General Legal Advice Services (RM3786) is the default route to market for Central Government Departments and their Executive Agencies who wish to access more general legal services. Both the Rail (RM3756) and Finance and Complex Legal Services (RM3787) panels should be accessed if the more specialised support offered by these agreements are needed.
There is no requirement to apply to the Exception Process if you propose to instruct a firm under the panels mentioned above.
37 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Using Firms “Off-Panel”
In limited circumstances, you may be able to source work outside of these CCS Panels by following the Exceptions Process.
Please note that this Exceptions Process does not replace or affect in any way the applicable Cabinet Office controls on Consultancy spend, which continue to apply.
The Exceptions Process is administered by Government Legal Department (GLD) Commercial Law Group on behalf of the Treasury Solicitors Office, and applies to all Central Government Departments. A copy of the process can be obtain via request to: [email protected]
To summarise, if you wish to go off-Panel, you must seek approval from GLD in writing, disclosing the justifications for the reasons for doing so, which must be based on the following: ● You have a specialist requirement for Panel Services which cannot be met through the General Legal Services Panel (through lack of specialism or bandwidth in that specialist service); and/or; ● You can demonstrate that you can achieve significantly better value for money from an alternative arrangement.
For completeness (although these exemptions are unlikely to apply to work potentially under this Panel) the Exception Process does not apply: ● To the requirements for enforcement and property legal services of the: ○ Driver and Vehicle Standards Agency; ○ Driver and Vehicle Licensing Agency; and/or ○ Vehicle Certification Agency; or ● To the requirements for planning legal services of Highways England. ● Litigation Work where individual pieces of work are valued at below £20,000 Ex VAT. These are more suited to WPS Panel. ● Transactional Property Work (including non complex conveyancing and work relating to leases and licences) or Employment Litigation where individual pieces of work are valued at below £20,000 Ex VAT.
.
[END OF DOCUMENT]
38 Framework name RM6183 Trade Law Panel Version number: 2 (Feb ‘21)
Further information
If you require any further information please contact [email protected] 0345 410 222
You can also learn more about Crown Commercial Service at:
Website: Twitter: LinkedIn: crowncommercial.gov.uk @gov_procurement Crown Commercial Service
39