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 At the HSK Partnership Awards last night, P2G were Highly Commended in the category of "Best Consultancy Practice with the NHS". It was great to be recognised for our work and to be amongst so many others all working to support the NHS in these difficult times.
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 I am sure we have all been affected by the news and horrific scenes from Ukraine and the plight of the people that have had to flee or are having to endure the senseless violence inflicted on them. As part of our continuing commitment to humanitarian causes, we are pleased to say we have donated £5,000 to the DEC Ukraine Humanitarian Appeal. If you would like to help too, you can donate here.  We are also longstanding supporters of Refugee Action. Our donation this year was £20,000. If you can help them help those who have had to flee their own countries, please do. You can donate here.
P2G has recently secured successful outcomes in a number of disputes relating to the operation of "Insurance Gainshare" Mechanisms with health and education PFI contracts. The resolution of these issues either by way of commercial settlement or use of the formal dispute resolution process / Adjudication, has resulted in the payment of several hundred thousands of pounds to the public sector that had incorrectly been withheld by certain PFI equity investors and their insurance advisors. We are also aware of a number of wider adjudication decisions on these issues that have gone in favour of public sector bodies.
These recent successes are a reminder to local authorities, NHS Trusts and other procuring authorities to scrutinise insurance provisions carefully to ensure that any sums properly payable to the public sector are accounted for in the insurance reports prepared by or on-behalf of the private sector. Particular issues to look out for include: 1. Market Movement - the cost of insurance for PFI projects has dropped dramatically since many projects were signed. Under standard form drafting the public sector should be permitted to benefit from this reduction, however we are aware of certain insurance advisors that seek to pass the benefit of these reductions to the private sector parties that instruct them; 2. Project Insurance Changes - we have also encountered projects where insurance advisors have sought to justify the private sector's right to retain insurance savings by reference to Project Insurance Changes or PIC. Recent adjudication decisions have confirmed that a "blanket" approach to assessment of PICs is not permitted and any PIC must be accompanied by a detailed explanation of the activities undertaken by Project Co (in addition to its usual contractual obligations) that have in fact resulted in a Project Insurance Change; 3. Insurance Premium Tax - due to changes in IPT over the life of the project, the Insurance Gainshare calculation must be checked to ensure that it correctly (and fairly) addresses the impact of IPT on the savings payable to the public and private sector parties; and 4. Timescales - Many PFI contracts contain strict timescales for the public sector to challenge the insurance gainshare calculations put forward by the private sector. Failing to meet these timescales can prevent the public sector from recovering payments due to them. If you would like to discuss these issues, or the operation of insurance gainshare calculations generally, please get in contact with Russell, Bruce, or Jack.  P2G is delighted to announce that it has been shortlisted for Best Consultancy Partnership with the NHS at the HSJ Partnership Awards 2022, recognising their outstanding contribution to healthcare – in what has been an exceptional and challenging period across the sector.
Despite the demanding circumstances of the past 2 years, over 190 entries have been received for this year’s HSJ Partnership Awards, with 123 projects making it to the final shortlist. The volume and standards of applications has been a true testament to those health and social care staff, who continue to push outstanding work and transformational projects across the sector. The judging panel was once again made up of a diverse range of highly influential and respected figures within the healthcare community, including Dr Matt Aiello (National Programmes Lead, Education Reform, Health Education England); Dr Elena Bechberger (National Programme Director – LVHC Programme, NHS England and NHS Improvement); Claire Igoe (Head of Environmental Sustainability - Manchester University FT) and Vinice Thomas (Director of Nursing and Quality, NHS England and NHS Improvement). Following the intense and in-depth judging process, P2G was shortlisted, ahead of the official awards ceremony to be held next year (24th March). Standing out amongst tough competition from hundreds of other exemplary applicants, P2G have been selected based on their ambition, visionary spirit and the demonstrable positive impact that they/their project has/have had on patient and staff experiences within the health and/or social care sector. The project for Dartford and Gravesham NHS Trust, centred on the turnaround of the first PFI Hospital to be constructed. Having operated for 19 years, the perception of the Trust was that the PFI was suffering from a lack of management with a deterioration in the condition of the Hospital, and service delivery that did not meet Trust’s needs. The project was designed to ensure that the NHS would receive the services it was paying for and, with just 10 years until contract expiry, that the Hospital would be returned to public ownership as an asset rather than a liability. Bruce Dalgleish, Partner at P2G comments, “We are delighted to have been shortlisted for Best Consultancy Partnership with the NHS, recognising the collaborative efforts and dedication of our staff members over the last 12 months to successfully implement the Comprehensive Business Review of Darent Valley Hospital PFI contract. We are committed to delivering improved outcomes for our public sector clients, and to be chosen among the other incredible nominees is a wonderful achievement. This nomination has been a tremendous boost to staff at P2G and I am sure it will bolster our continued efforts to improve our services. The full list of nominees for the HSJ Partnership Awards 2022 can be found on https://partnership.hsj.co.uk/finalists-2022 The selected winners will be announced during the awards ceremony at Westminster Park Plaza, London on March 24th 2022 P2G is spearheading the drive to develop and embed best practice contract management on the UK’s PFI contract portfolio and is working closely with the Department of Health and Social Care, individual NHS Trusts and Local Authorities on over 45 individual projects. As part of our continued growth we are expanding our multi disciplinary team of PFI, FM & outsourcing experts to support the public sector and ensure it is receiving good value and contractually compliant public services in all areas. If you are interested in joining a dynamic organisation that places the values of its clients & employees at the heart of its business, we invite you to apply for the following roles: Director / Associate Director (immediate start) - see below Analyst (September 2021 start) - details here Commercial Accountant (September 2021 start) - details here P2G is an equal opportunities employer. We do not discriminate on the grounds of age, gender, race, colour, religion, disability or sexual orientation, and we welcome applications from all sections of the community. Director / Associate Director
Location: Nationwide Permanent contract (£45,000 - £75,000 p/a depending on experience + pension & benefits). P2G Contract Support LLP P2G is a Social Enterprise Partnership formed in 2012 to assist public sector bodies in the delivery of their PFI and estates management services. We work closely with public sector clients providing commercial, contractual and technical support to ensure service delivery and value for money is achieved across a range of outsourcing and partnering structures including shared service agreements, PFI / PPP and PF2 contracts and traditional facilities management contracts. In the 2018 budget the government announced that it will continue to work to improve the value of existing Private Finance Initiative contracts, of which there are over 700 in the UK. The announcement recognised that high quality contract management helps departments get the most out of their contracts. To this end, the Government has piloted a “Centre of Best Practice” in the Department of Health and Social Care, to provide support for contract managers at a number of NHS Trusts. P2G is spearheading the drive to develop and embed best practice contract management on the UK’s PFI contract portfolio and is working closely with both the Department of Health and Social Care and individual NHS Trusts to ultimately ensure that the private sector is delivering against the contract standards. The role We are seeking a Director or Associate Director to join our multi disciplinary team. Within this role, you will be the project lead and day to day contact for a number of our clients with responsibility for the provision of P2G’s services to the client and supporting those clients to achieve their operational and commercial objectives. You will be responsible for:
In addition, you will be involved in the business’ wider activities, including the delivery of the Centre of Best Practice for PFI projects, implementation of P2G’s tech solutions for PFI helpdesk operation and mitigation approvals and the completion of PFI expiry / handback reviews. As part of a growing team working in a market leading business, you will be expected to contribute to maximising, and will gain from, the wide range of opportunities which exist within the PFI market as the sector rapidly approaches PFI expiry / handback and our clients look to develop alternative service delivery models for the future. Your experience and expertise We are interested in receiving applications from individuals with 3 years+ (Associate Director / 5 years+ (Director) experience of working within the PFI sector for either the public or private sector. We are particularly interested in applicants able to demonstrate experience of the day-to-day operation of PFI contracts who are able to demonstrate an understanding of the contractual, commercial and technical issues which frequently occur and the mechanisms used for resolving those issues. Relevant background experience includes:
Salary and benefits Salary: £45,000 - £75,000 p/a depending on experience + pension & benefits. If you would like to apply please email your CV and a short covering letter explaining why this role is of interest to you to info@p-2-g.co.uk. P2G is an equal opportunities employer. We do not discriminate on the grounds of age, gender, race, colour, religion, disability or sexual orientation, and we welcome applications from all sections of the community. As the priorities of NHS Trusts change to tackle the demands of the Covid-19 emergency, the need for flexibility in the delivery of services under PFI contracts has become more crucial than ever.
In some areas this has created tension between NHS Trusts and their providers as to the correct contractual response to the current situation. The Infrastructure and Projects Authority has provided helpful direction on these issues in a Guidance Note (IPA 2 April 2020) which is to be read alongside the earlier Cabinet Office Procurement Policy Note (PPN 02/20). The recent Guidance Note highlights that:
Collectively, the guidance issued by central government raises a number of important considerations for NHS Trusts:
There are specific actions which NHS Trusts will need to take in order to comply with the guidance:
These actions will place additional administrative burden on Trusts at a time of extreme pressure. Additional support is available to Trusts from DHSC and P2G. If you need assistance, please get in touch. We are here to help. How should NHS Trusts approach the management of PFI contracts as the Covid-19 issue develops?25/3/2020 As the response to Covid-19 intensifies we are seeing a wide range of behaviours from suppliers engaged in PFI contracts. In many instances Project Companies and FM providers are making a concerted effort to support the NHS, going above and beyond normal operational requirements to help hospitals respond to the current circumstances.
Examples of positive actions being taken include:
Each of these have assisted the NHS Trusts in question to focus their resources on meeting the growing challenge that Covid-19 presents and efforts of the suppliers in question should be recognised. Unfortunately this approach is not universal and we have encountered a number of PFI providers who appear to be focused on using the Project Agreement to maximise their contractual and commercial advantage and/or are proving unresponsive to the changing requirements of their NHS clients. This raises the issues of how a PFI contract responds to the current circumstances and what approach the parties should be adopting to ensure that essential clinical services are maintained to the best of the NHS’s ability. The Cabinet Office has provided helpful guidance in a Procurement Policy Note (PPN 02/20) setting out “a pragmatic approach”. This suggests that, in the interests of business continuity and employment, the Trust should consider paying on receipt of invoice on the basis of previous invoices (e.g. a 3 month average figure) on the proviso that suppliers:
However, it is specifically noted that: “Suppliers should not expect to make profits on elements of a contract that are undelivered during this period and all suppliers are expected to operate with integrity. Suppliers should be made aware that in cases where they are found to be taking undue advantage, or failing in their duty to act transparently and with integrity, contracting authorities will take action to recover payments made.” This suggests that rather than a wholesale suspension of the paymech, the Trust agrees to continue to pay invoices at the level of performance experienced prior to the current situation and that, at some later date, a true-up is agreed, with any increase or decrease in payment then accounted for. Where a contractor requests relief, the guidance provides the following: Force Majeure The Trust should work to vary contracts instead, including “changes to contract requirements, delivery locations, frequency and timing of delivery, targets and performance indicators etc”. Such changes are to “be limited to the specific circumstances of the situation, and considered on a case by case basis.” Excusing cause & relief events “excusing cause and relief event provisions generally give a supplier relief from its contractual obligations, which contracting authorities may be able to use to provide relief, for example, to change the KPI regime, payment mechanism or reduce service level requirements. Some contracts may have other relief mechanisms. Whatever the regime, contracting authorities should maximising any commercial flexibilities within the contract, including agreeing new measures such as on meeting lead times, waiving or delaying exercising the authority’s rights and/or remedies (e.g. to claim liquidated and ascertained damages, service credits or terminate the contract), revising milestones or delivery dates. In these circumstances, if there is one, use the contract change control procedure to keep records of any changes made and the decision making behind each one.” Note that the guidance states: “Contracting authorities should not accept claims from suppliers who were already struggling to meet their contractual obligations prior to the COVID-19 outbreak.“ Conclusion The guidance suggests that a pragmatic approach might look as follows:
Trusts and Project Companies may wish to enhance the resilience of certain core systems at this time (potentially at the expense of non-core systems) and could consider:
In addition, the nature of the crisis is likely to necessitate rapid implementation of (temporary) variations at the behest of the Trust. Trusts and Project Companies should consider implementing an accelerated variation process when effecting Covid-19 related temporary variations, including:
This is an unprecedented crisis and it is inevitable that there will be some initial difficulties. However, we believe that it is in all parties’ interests to work proactively and pragmatically to facilitate the best possible response to Covid-19. How the parties respond will be remembered long after life gets back to normal. The principle of all PFI projects is that Project Co (and their subcontractors) should self-report against their own performance and declare to the Authority any areas of underperformance against the Service standards. The Monthly Report is where they should do this.
It is perhaps naive to believe that this is going to work. How many times have you sped down the motorway and then called the police at the end of your journey in the knowledge that you will be fined and awarded penalty points? It just isn’t human nature and, certainly, it isn’t typical for commercial organisations to create a culture that expects their staff to purposefully diminish their returns on a contract in order to be contractually compliant. On this basis alone, it is important for any public sector organisation to actively read and question the Monthly Report and to ensure that it properly addresses all of the requirements under the contract. The minimum requirements for the Monthly Report are typically set out in both Schedules 14 and 18 of standard form contracts and will include the following:
However, for each Service that is covered by the Project Agreement, it is important to go back to the Service Level Specification and look at the requirements. On most standard form contracts the Key Performance Indicators (KPI’s) or Service Parameters (SP’s) for each Service are typically well defined and stipulate what should be measured to demonstrate compliance. There can be up to 45 KPI’s per Service on a typical contract, so if there are say 11 Services (General, Estates, Helpdesk, Cleaning, Catering, Portering, Security, Telecoms, Pest Control, Waste and Energy Management) that could easily amount to in excess of 350 individual scores that need to be reviewed and critiqued each and every month. What is not always well defined, though, is the method of monitoring and the source data that will be utilised. For Reactive tasks, the method of monitoring is invariably measured using the Helpdesk, provided that Project Co (and their Service Providers) are properly reporting all reactive tasks using the Helpdesk (see our ‘Follow on tasks’ post). What is often missing, however, is clarity around the method of measurement for qualitative or planned tasks. It is therefore important to sit down with the Project Co and Service providers to check whether the contents of the monthly report do in fact evidence compliance with each of the KPI’s or SP’s. Typically, the Authority will have a defined time frame to raise any issues with the self-declared scoring. This is typically two months, although in order to get any issues properly credited in the current month’s invoice, you may have as little as 5 days. Once two months have passed, the Monthly Report and the data it contains become the sole record for the period, with no challenges able to be raised except in cases of deliberate misrepresentation, gross incompetence, gross negligence, or fraud. P2G actively monitor the performance and monthly reporting on a number of NHS PFI projects and our experiences to date suggest that there is a large divergence between reported and actual performance when measured against the contract. If you are interested in checking whether you are receiving the Services for which you are paying, please feel free to get in touch. Under a typical PFI contract, the cost of any damage to the property is normally the responsibility of Project Co. There are only limited circumstances where this is not the case, i.e. the Authority is liable. In the majority of cases, if Project Co claim that the Authority is responsible for any damage, then it should be able to evidence that the damage has occurred due to a “breach of an express provision” of the Project Agreement or a “deliberate act or omission” by the Authority or any Authority Party. This means that an individual or individuals did so with the intention or knowledge that the damage would be caused by their act. You should also check the definition of Authority Party within Schedule 1. For example, in a hospital, it is often the case that patients and visitors do not fall under the definition of Trust Party, so even if they did cause damage deliberately, the Trust are still not liable for the costs of rectification. We are seeing frequent cases where Project Cos are billing Authorities for damage where these requirements have not been met. Such requests do not need to be paid unless Project Co has provided evidence that the above conditions have been satisfied. Any payments made without the required evidence may be recoverable by the Authority. P2G can review the Authority's entitlement to getting that money back. If the cost of rectification is above the insurance excess (typically £5,000), even if the Authority is liable for the costs of rectification, their maximum liability will typically be for the excess amount only. The diagram below simplifies the process of deciding liability in the event of damages and highlights where the financial responsibility falls.  If you think that the Project Co operating and maintaining your building may be wrongly charging you for the reasons outlined above, please do not hesitate to contact us for further advice.
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AuthorsThe authors have experience of more than 100 PFI projects in multiple sectors. Archives
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