Ending the Capita contracts - time is running out

Labour won control of Barnet last week with a large majority. They will be under serious pressure to make lots of changes to the way the council is run but I would plead that the two Capita contracts should be a top priority.

As I have said for the last 9 years, the two Capita contracts do no favours for Barnet residents. The catalogue of failure has been well documented on this blog, and as part of the review that has been dragged out over the last two years, it is evident that bringing services back in house can either directly save money or provide a better, more competent, service. 

The looming problem Barnet Labour Cllrs face is that, because the previous regime delayed the decision on whether or not to extend the contracts until after the election, it has left just 3 months to take that decision or face having to extend the contracts for at least another year simply because the transition arrangements haven't been put in place.

Both contracts expire on 5th August 2023 but there are specific clauses which relate to what has to take place to meet that expiry date. 

In the CSG contract it states at 47.3.7 that: 

On or before a date falling no later than twelve (12) months prior to the Expiry Date (where this Agreement expires by effluxion of time) or during the period from service of any Termination Notice until the Termination Date of this Agreement, the Authority shall notify the Service Provider in writing whether it wishes to retender the provision of the Services.

It then goes on to clarify at 47.3.9 that:

If the Authority does not wish to retender the Services then the Authority will indicate which Service Provider Exclusive Assets and Service Provider Traded Service Assets (or part of the Assets) shall transfer to the Authority on the Expiry Date or Termination Date in accordance with clause 5 (Assets and Equipment) and the Service Provider shall promptly undertake all necessary actions by the Expiry Date or Termination Date (as the case may be) including any further actions required pursuant to clause 5 (Assets and Equipment).

Probably the most critical element is the transfer of data and the transitioning of the IT system. When Southampton Council took the Capita contract back in house it took them 12 months to set up their own systems and transfer all of the data.

In the CSG contract it notes at 47.3.2 that 

The Service Provider shall (subject to any condition imposed on the Service Provider or any Sub-Contractor by Legislation):

(d) no later than six (6) months and no earlier than twelve (12) months before the Expiry Date, supply to the Authority within twenty (20) Business Days of the relevant date or request all information reasonably required by the Authority to carry out the Services (including but not limited to information (subject to the DPA) referred to in Schedule 33 (TUPE Information for Retendering) in relation to employment of all employees of the Service Provider or any sub-contractor (including the Sub- Contractors) employed in the provision of the Services and information relating to the Assets and Authority Assets) and the Service Provider warrants that at the point when given and, to the best of its knowledge and belief, such information is accurate in all material respects.

At 47.4.7 Surveys on Expiry or Termination - Final Survey, it states:

twelve (12) months prior to the Expiry Date or during any period leading up to the Termination Date, the Authority shall be entitled to procure the carrying out by a suitably qualified independent surveyor (not being an employee of the Authority) of a final survey of the Assets and Authority Assets to assess whether they have been and are being maintained by the Service Provider in accordance with its obligations under clause 6.1 (Maintenance).

At 47.4.5 Retention Fund it states that:

If the Service Provider has been notified under clause 47.4.3 (Results of Survey) that rectification and/or maintenance work is required, twelve (12) months prior to the Expiry Date or in the period prior to the Termination Date the Authority shall (to the extent that the Outstanding Work has not been carried out in the interim) deduct the costs of that work as quantified by that survey referred to in clause 47.4.1 (Final Survey) from the next following instalment (or, if the amount of such instalment is insufficient, the next instalments as necessary) of the Periodic Service Payment and pay such amount into an interest bearing account (the Retention Fund Account) until this Agreement has expired or terminated (subject to clause 47.4.6 (Costs).

At 7.3.2 it notes that: 

Six (6) months (or such other period agreed to by the parties acting reasonably) prior to the Termination Date or Expiry Date (as applicable) the parties shall agree:

(a) which of the contracts used in the provision of the Services shall transfer (either by novation or other mechanism) to the Authority or Future Service Provider (the Transferring Contracts);

(b) the costs and a reconciliation of any payments made in advance or arrears in respect of the Transferring Contracts on the basis that the Service Provider shall be responsible for all costs and charges which arise prior to the Termination Date and/or Expiry Date (as applicable) and the Authority shall be responsible for all costs and charges which arise after the Termination Date and/or Expiry Date (as applicable).

(c) the process and timetable for transfer and handover of management responsibilities in respect of the Transferring Contracts together with the provision of relevant documentation and information in respect of issues such as performance and payments to date.

This will require a lot of pre-planning and that needs to start very soon so that by 6 months before expiry you know exactly which contracts you want to retain.

The Re Contract is a joint venture and as such the unwinding process is more complex. In that contract it states at clause 2.3 that if Barnet wish to extend the contract by 5 years then that notice has to be provide 18 months before the expiry of the contract. This is repeated at clause 55.3.6. I just hope that the previous regime did not provided that notice.  

At 27.1.1 it states that:

Subject to clause 29.2.4 and 29.2.5 in the event of termination or expiry of this Agreement the Authority shall have the option exercisable within six (6) months of the Termination Date or Expiry Date to:

 a) purchase from the Service Provider at their Net Book Value any or all of the Exclusive Asset(s), unless:

 i. the cost of any such Exclusive Asset(s) has been fully paid for through the Periodic Service Payment or otherwise amortised at the time of expiry or termination of this Agreement; or

 ii. any such Exclusive Asset(s) were transferred and delivered to the Service · Provider as Initial Transferring Assets in accordance  with clause 29.2, and in which case such Exclusive Asset(s) shall be transferred to the Authority at nil cost; and

 iii. the cost of any such Exclusive Asset(s) has been partly paid for through the Periodic Service Payment or otherwise partly amortised at  the  Expiry Date or Termination Date then a proportional part payment shall be deducted from the Net Book Value;

 (b) receive (or a nominated party receives) a non-exclusive licence on reasonable commercial terms and at a reasonable commercial rental for the non-exclusive use of the Shared Assets (or a part thereof as nominated by the Authority);

At clause 30.8.1 the final survey (similar to the CSG contract) can be carried out 18 months prior to the expiry date and at 30.8.5, the Retention Fund, as with the CSG contract should be identified 12 months prior to the expiry date. 

In each contract there is an entire schedule  (Schedule 17 in the Re Contract and Schedule 18 in the CSG Contract) specifically relating to the exit arrangement and includes, for example, the requirement for Barnet to appoint an 'Exit Manager'. Capita have to have an exit plan already prepared which they have to update annually. It will be critical to see if that plan is up to date and the extent to which they have assumed the contract will be extended.

My biggest fear at the minute is that the new Labour regime will be told by officers that this fall into the "too difficult" category and that the proposals identified by the previous regime should be enacted. That would be a disaster, would limit what changes could be made to the way the council is structured and critically, would signal that Officers make the key policy decision, not the elected members. Time is short to take decisions, because the last scheduled full council meeting before 5 August is on 26 July, just 10 weeks from now. Please don't waste that time otherwise we will be stuck with Capita for years to come.