Sophie Burton-Jones: Hello, and welcome to Talking digital health, a podcast by law firm Mills & Reeve, hosted by health and tech lawyers, Sophie Burton-Jones and Charlotte Lewis.
Our aim on this podcast is to discuss key topics of interest to those procuring tech in the NHS, and also those selling tech to the NHS.
I'm Sophie Burton-Jones, and I'm your host for this episode.
And we're delighted to be joined today by Tracy Laforte, who is the Head of Procurement at University College London Hospitals NHS Foundation Trust. Quite a mouthful there, so I'm going to say UCLH from now onwards.
Tracy Laforte: That's absolutely fine, Sophie.
Sophie Burton-Jones: But thank you very much for joining us.
So, in this episode of Talking digital health, we'll be talking about digital transformation in the NHS, specifically supplier management relationship over the life of the contract, which for critical IT or digital systems could be anything from five to 15 years or even longer, actually, when taking into account both the procurement process at the start the contract life and then the kind of exit transition at the end. And I know Tracy, as a procurement person, you can be involved at all in any of those stages.
Tracy Laforte: Yeah, definitely all of above. Yep.
Sophie Burton-Jones: So there's quite a lot of focus for obvious reasons on managing relationships during the procurement process and the kind of preferred bidder stage where you're in that kind of trying to avoid and mitigate any risk of challenge and do everything within the procurement regulations, and you're heavily involved there, but from the outside at least, it seems once people get to contract, then it can be a bit less common to have some sort of formal relationship management going on through the life of the contract, except if something goes wrong.
Do you agree with that? And if so, why do you think that is?
Tracy Laforte: Yeah, that's a good one, Sophie. I think there's a mixture. I think it depends on the size of the contract as to how much input there is. Looking after things like shared care record contracts, for example, we have regular contract reviews. We have another big digital contract that we do have regular monthly reviews, and there is a contract manager in place for that one.
You're right, it's a mixed bag because some contracts are really, really hands-on and you are almost to the 8th degree with the KPIs and the measurements, etc. And others kind of like, well, you've done the contract; you've ordered it, now run with it, and then we come knocking on the door when there's a dispute. So, it is very, very mixed.
I think some of that is to do with the expertise when it comes to digital and understanding, especially when you look at SLAs, uptime, service credits, calculations. People say, "oh my God, I've entered into the dark arts and I don't really understand this", whereas actually it doesn't need to be that complicated and it can be a case of actually bringing the experts to support you.
From an operational perspective and procurement perspective, we've all got our expertise and together we're greater. And I think sometimes it's a case of operationally, people just get so caught up with what they're doing that suddenly the contract gets thrown at them and they're like, "oh my God, now what do I do?" And it shouldn't be like that because contracts shouldn't be the weapon of mass destruction, it should be the last resort that you have to go, well, let's rely on the T&Cs.
Actually, if it's working day-to-day, that contract should just hum away in the background. And I think that's probably where there's a little bit of... if you think about what the size of contract is, if you think about electronic patient record contracts, they're massive. And do people sit and read every single schedule? Or they should understand those schedules and be able to refer to them. But you shouldn't use it as the everyday, let's launch this at the supplier. It should be a good working relationship. Quarterly reviews. Regular reviews. If there's a problem, then obviously go into weekly or monthly to that problem is resolved. And working together in a more of a partnership way. And I think that doesn't always happen.
Sophie Burton-Jones: Do you think that's because sometimes those conversations aren't happening until there's already a relationship issue?
Tracy Laforte: Yeah, you've already hit a problem and then they bring out somebody else in to act as... it's like the blue beret, you go in as the UN peacekeeper to try and bring it back down because you can see... I've been in meetings where it is so fought between the operational team and the supplier that they're almost at loggerheads across the table and you walk in and go, well, hang on, there's no need for this, let's strip it back, defuse and get to the root of the problem. Actually, the problem doesn't always have to be as massive.
I mean, when I took over tele-tracking back in a previous organisation and it wasn't good, but we got it back to where it needs to be. And that was with regular contact. What do we do? What do they do? How do we move it forward? Recognising that as an organisation, you make mistakes too.
Sophie Burton-Jones: Yeah, that's a fair point. And you've mentioned there, you come in and then there's the contract managers sometimes, there's lots of different people that can be involved. I mean, who do you think should normally be responsible or involved in leading that supplier relationship management under the contract from a trust perspective?
Tracy Laforte: It should be operationally led because they know the mechanics of what they're trying to deliver but with the right team behind them. So, you do need your finance manager to make sure your invoice is being paid correctly. You do need your procurement lead or commercial lead, whichever it's where it sits within your organisation.
But they don't have to be front and forward all the time. They just need to know the monthly reporting is coming in, the KPIs are being measured, and actually understanding that this is going to be a trigger.
But operationally, they should be the ones managing day-to-day. They should have the stakeholder relationship with the supplier because they're the ones who've actually got to deal with them day in day out and if they've got to go in for service issues, etc., they're the ones picking up the phone to the help desk, so they should have that relationship.
Sophie Burton-Jones: Yeah, that makes sense. However well the relationship goes, there can always be issues that come up in the life of a contract. When issues get brought to you, how often do you think they could have been avoided, potentially, or at least the impact lessened if there'd been some better relationship management earlier on? I know we've slightly touched on that.
Tracy Laforte: Nearly 100%.
Nearly 100%.
You know, if you're coming to me when there's an issue, you're a bit bottom dollar, had we been involved earlier on, that issue could have been avoided, technically speaking.
Not in every case. Sometimes it is how a service is delivered and it has a material impact and that can't be foreseen. That's not contractual management. That's how the service is going day-to-day. So it's like your packs, for example, if your pack system goes down, means your radiographers can't read the images, means that your consultants are sitting there in clinic without images in front of them to be able to do their diagnostics. That's slightly different.
But if it comes to a point where you're at loggerheads because you haven't paid an invoice or you haven't done this, haven't responded to this service level or this... You kind of feel like actually this stripping back that could have been dealt with earlier. You know, it didn't need to go to a dispute resolution position because actually you should have been talking earlier.
During COVID, obviously we couldn't have face-to-face conversations. It was all very much Teams. I think that's taken an awful lot of it out because on teams, your body language, half of what we do isn't how we communicate in terms of verbally, it's the body language in the room, it's the tension, it's how you defuse a situation and sometimes that's best done face to face.
So I know recently we've heard a few disputes, I'm straight away, right, we're in a room, we're meeting and we're going to talk this through because it's a much better way of dealing with things.
Sophie Burton-Jones: Yeah, you can react more, can't you, to the situation and like you say, the body language and what is going on and how you might be able to defuse it and that kind of thing.
Tracy Laforte: Yeah, especially when you're doing some of these complex contracts. I mean, as we've worked on a couple of electronic patient records in the past and some of the conversations we've had actually would have gone across a little bit better had we been in a room and probably transacted a lot quicker. Just put a lock in. Let's deal with it. I mean, I've just been finishing one on a slightly different catering contract, for example, and we're not in a room and it's taken two weeks to get to a resolution, which could have been done in a couple of hours.
Sophie Burton-Jones: So then not always virtually. Not always the best way.
Looking almost to the end of the contract life, sometimes maintaining a good relationship with a supplier during a re-procurement process can be, or exit actually at the end of the re-procurement process, can get a bit tricky. And it's not necessarily because the relationship has been bad to start with, it's just there's that kind of tension where there's procurement process ongoing and/or the procurement outcome hasn't been what they would have hoped and you're moving on.
Have you got any tips for how to manage the relationship at that stage at all?
Tracy Laforte: Yeah, you're right. I mean, nobody likes to see an exit and I think most people do in public sector recognise the contracts are not going to be 20 years down the line. We're not, as you've already alluded to, we at the moment with the Cabinet Office controls, we can't go beyond 10 years on some of our contracts. So technically speaking, any supplier coming into our arena is on a short lifeline, but it is very much about... If walls go up because you're doing a re-procurement exercise, it's making sure that the right people are in the right groups, as it were.
So if you're re-procuring, you put a different team that's doing operational day-to-day management, because what it can't do is blur the lines. And it keeps it cleaner for both the incumbent and anybody new entrant to this, because as potential risks or challenges they had in private information, they knew more than we did, therefore they were always going to re-win the bid per se.
But equally, sometimes it is good to get a refresh and have something completely new come into the arena and try different innovation and try different, you know, different suppliers even, because what you want to try to do is keep that market healthy.
I think as long as you're maintaining that conversation and the suppliers recognising that you're playing with a straight back, that there is no deviation. There is no special treatment. And the other bidders can see is exactly, all goes onto the portal, you're getting the clarification questions, you're all being answered in the same way, you're all coming to do demos at the same time. The hardest part is keeping your stakeholders in a position where they can't... you've got no bias. You cannot think about, actually, previously they did this about five years ago. No, that's out the window. You are now evaluating them on what they are presenting to you today. And it could be good, bad, indifferent, but that's what you have to evaluate. You cannot go on, they did this, or, oh, they did that really great thing. And I think that can't, no. And as a facilitator of that, you've got to sit on the lines and go, no, this is how we are going to evaluate. This is how we're going to treat every single bid in an equilibrium. And it is hard because you will get that bias in the room.
And I've seen comments where comments come back from an evaluator, but they've actually written it on the sheet and I've gone back to and said, you can't do that.
You cannot use an example that is nothing to do with the bid. And much as they don't like it, it is a case of it keeps people on the straight and narrow. And that's what we need to do as procurement professionals is to do that and maintain that equilibrium. Everyone feels like I'm being treated the same. There is no bias.
Sophie Burton-Jones: And do you give training to your evaluators? or does it depend on the size and importance of the contract?
Tracy Laforte: Yes and no.
And you're right, it does depend. So when we were doing the unified electronic patient record, we had 250 evaluators. They all went through formal training. They all got given, "this is how we're going to run it, this is your section, this is how you're going to do it". And actually, we did those in a room. They weren't allowed to go off and do stuff. It was a case of all in the room, we're doing it together as a collaborative, and this is how we're doing it.
It really does depend on the size of what it is you're trying to do. But even when it's a small piece, you've got a small group, we sit them down and go, right, this is what the expectation of you is. And this is how we expect you to feedback. You've got to keep complex notes. All of those notes have to be fully disclosed. You can't be writing on blurred lines, for example. It all goes into a file and it's kept there. And then when we're doing debrief letters, it gives us this is the information we're then feeding back to suppliers. as part of the regulations.
It just keeps people again straight and it keeps them in a clear position that, you know, this is a serious piece of work and challenge on any nature, this goes to full disclosure.
I remember many years ago entering into an organisation that was being challenged on a particular tender that they were undertaking as a collective. It was across a wider network. It wasn't just a trust, it was a group of trusts. It's 0.5% difference between the first and second bid. I walked into the room and said, don't even think about contesting.
But they pursued it and pursued it. They did. The supplier that was challenged found the nugget and it was just something stupid like innovation - they said they were going to be able to do this in two years' time and it got a high score. I said, they've got you in a nutcrack. I said, because you can't score that because it's not there and therefore you shouldn't have put that into your award criteria and said, oh, that's a really great piece of thing they've done because now they've given them bonus points. That was your .5 completely gone. And the challenge was upheld. And you just got to be so careful with what you're doing.
I think if you've got really good procurement professionals working with the stakeholders, it's our responsibility to just go, OK, what have you written? Why have you written that? And challenge that and go, actually, remember, we have got to give feedback.
Sophie Burton-Jones: Yeah. And you've got quite a decent sized procurement team for an NHS trust. I was going to say, do you see that in other trusts? Is it that there are some trusts that are quite lucky and have got a decent team and there's only one or two people and they're trying to cover everything.
Tracy Laforte: Yeah, it is very much a mixed bag, Sophie. And I think, talking to my counterparts across from an ICS and local trust level, it's a really mixed bag. If I talk to some of my community colleagues, it's an associate director of procurement and then a team of about two or three individuals around five below them and it's like it's not the same whereas I'm really lucky I've got a good structure of over 16 people that cover both corporate medical items as well as well as digital etc.
Not if your trust is lucky. And what you do see is that cross-fertilisation, where as part of your network, you kind of get a phone call from a colleague going, well, just need to help on this, are you willing to come and step in? And it's nice, but it's also recognising where there's such a pull on those resources. There's not enough talent. And to be perfectly blunt, I don't think we've invested in it. It's only now that we're getting the Charity Institute of Purchase Supplier training and support.
Obviously, we've got the CCF where they've been driving for the academy.
This is where we need to, it's background around. I mean, we've been lucky at UCLH. We're in our second rotation of graduates that have come in. So we have them for two years and then you hope that they grow into new roles. And we've been lucky that we've kept some of those graduates and they have gone on to stay with us and do different roles. But it's a profession that needs investment.
Sophie Burton-Jones: Yeah, I guess that's the NHS and people going into it generally need some investment. But we'll leave that one for another day.
Tracy Laforte: That's a whole different podcast, isn't it?
Sophie Burton-Jones: So thank you for that so far. We're just going to take a short break now. When we come back, we're going to talk more about the new contract management requirements under the Procurement Act. I know you've got some thoughts on that, and I know we've talked about it previously. So very interested to hear what your thoughts are there.
Tracy Laforte: Oh, that's a whole new ballgame, Sophie.
Sophie Burton-Jones: Great, looking forward to it.
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Charlotte Lewis: Looking for information and advice on key legal points for you to consider when selling your healthtech product to the NHS? Listen to our Selling to the NHS episodes on Mills & Reeve's Talking digital health podcast, where we discuss key legal and regulatory issues to consider when developing and launching your product. Just search Talking digital health on your preferred podcast platform.
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Sophie Burton-Jones: So welcome back to this episode of Talking digital health, where we're discussing supply relationship management with Tracy, head of procurement at UCLH, and we're going to turn to the new Procurement Act now.
So there are new obligations in the legislation that require customers to report on performance against KPIs, where the contracts over a certain value, and generally there's a lot more in terms of reporting and notices and all of that kind of thing. How have you gone about preparing for that? Has it caused you any particular issues in terms of implementing it?
Tracy Laforte: Not in the latter, because we haven't got any that we've gone through that particular process yet. Obviously, it's only on new procurement going forward from February, so we haven't launched anything that's over the 5 million just yet.
But it was interesting because I took an exec paper forward where I explained in high level what some of these new regulations are going to mean and pretty much quite a few of my digital colleagues picked up on the KPIs and the performance measurement because of some of the issues we're seeing with certain vendors, shall we say. And their concern was, oh my God, we really do need to publish. I said, but recognising, we choose what we want to publish. So as long as we don't deviate from what we've tendered and said that we were going to put as KPIs and measures, we can pretty much decide which one of those KPIs we put out there because our finance colleagues were kind of concerned, actually, there could be some commercial damage.
If you start publishing, actually they're poor performance, they're this, does that then have another knock-on effect in terms of that contractual or, if you like, the commercial obligation with each other and how does that affect each other and the relationships going forward?
That was the one that pretty much my senior exec team kind of really did home in on about actually this really does need to be tread carefully with because if we put out there some of the performance that's going on, recognising that is a prerequisite for another trust to exclude a supplier if they are deemed that their performance is so poor that they don't want to include them because they just don't see that getting any better, that's a real concern going forward.
And I think this one that's going to have to be managed quite carefully along with, as you've alluded to, all the other notices you've got published paying them within 30 days. That's going to be a tricky one for the NHS because notoriously, we are not brilliant at paying. I know we all try and manage that as a measure of our own because that's what we're asked to do, but it doesn't always happen. And also, you know, all the other performance measures that are sitting behind good, bad and different.
All of that has to be published. It's becoming more transparent. And I think that's the worry for people about how much transparency is going to be out there in the ether.
And even when I've gone and spoken to suppliers and explained to them in reverse, they're like, "oh my goodness, so you're saying that we could potentially be removed from a tender because of...", and I'm going, yeah, because of the prerequisite. And then when I talk about debarment, they nearly fell off the chair.
Sophie Burton-Jones: Yeah, we've seen that when we've worked with clients who are on the supplier side, a bit like you were describing, like, do you know what this actually means for you? Have you understood? And as you say, when you actually explain it, they're thinking, you can see the eyes going, oh my goodness.
Tracy Laforte: It's a light bulb moment. It's like, oh my goodness. I mean, the worrying thing is, so if we deliver late to late, would that be... I said, no, no, no, now you're going to extreme.
You've got a KPI that says you've got 99.9% uptime, and you've got to maintain that over a 12-month period, and you actually go to 8-9.9%, but that could be published, and that would look great. But equally, for 99.9% over 12 months, and you hit that target, well, that's a great KPI to be putting out there, because it shows that you are delivering your services. It will differ according to the types of services we're publishing. Obviously, you think about soft and hard FM against digital. Yeah, there's a lot of concern around those.
Sophie Burton-Jones: Who, from your perspective within the trust, is going to decide on what the right KPIs are to publish for different contracts? Do you get involved in that or is, again, operational led, but with your steer or overview from what you're seeing in different things and your other procurement colleagues you talk to?
Tracy Laforte: It would be the latter. It would be a case of actually what we're seeing currently and how do we navigate that.
Again, recognising operationally they may go, well, actually, we want to publish because we're doing an implementation of a project, we want to put in, are they meeting the milestones, for example. Then that's fine for the first 12 months or until that milestone's hit, then the KPIs will have to change to something else more meaningful.
I think because you can change your KPIs over the life of the contracts as you're publishing, I think that's also given people a bit of comfort that actually, again, going back to that commercial relationship, if things are looking a little bit wobbly on particular KPI that you were measuring and publishing and you kind of feel actually for the protection of both parties, we might want to change that one, you can. And I think because you've got that flexibility, it makes it a little bit less onerous in terms of, well, because I've picked those three, I've got to keep with those three. No, you don't. And I think that makes a huge difference.
But yes, we would be part of that, and probably with some of our finance colleagues as well, because of that other commercial lens around understanding, actually, could that cause more harm down the road? So I would say it's a bit more of a group effort to start with.
Sophie Burton-Jones: Yeah. Yeah. I mean, I think it's quite a big change, isn't it? So it's got to be a group effort because nobody quite knows how it's going to play out and what it's going to look like. Yeah.
Tracy Laforte: Yeah.
Sophie Burton-Jones: And then I was going to ask you about contract change notices as well. So there's a requirement for almost all of those to be published kind of going forwards. Do you think that increased risk for trust? All your thoughts on it generally.
Tracy Laforte: It is a worrying one. I mean, obviously, we used to publish feet notices if we did certain things within contracts that really gave a bit of a significant impact to the change.
I think it's understanding just how much you need to publish and even talking about what do we publish if you haven't gone through a process, but we have got a contract and it's below threshold. All those conversations, they're still being played out at the moment because no one's really got their head around everything.
I think the risk is, if you do a contact change notice and know it's going to breach and they're there for exposure. And as you know, that could be a complete challenge from an outside organisation that sees it.
Given it's a new act and having gone through PCR 15 changes, we saw a whole load of legislative work coming through and people were more challenging because they were like, "actually, I am going to put challenge in here because I think there's an opportunity". I think that's where we're going to see the most risk when people start to publish things and a competitor goes, "let's see if there's a bit of a wriggle here and let's post a notice to challenge that". And I think that's what we're going to see. And I think that's the worry.
I mean, some of our CCNs are literally, oh, there's a name change.
Sophie Burton-Jones: Yeah, it's not very exciting at all.
Tracy Laforte: I was going to say, that's not material. It's when someone goes in, "oh, by the way, we've done a variation of about 200 million to this contract". Well, that's going to cause a few humdingers out there, isn't it? People might want to have a better closer look at that one.
So I think it will be about what's the materiality of what you're publishing. But in some contracts, I mean, I've seen we've got like 26, 27 changes because the life of the contract means you don't stay with a static contract that you awarded on day one. Over the life of the contract, it evolves because it should. That's where you're going to see actually people keep it at work. So this is CCN 27.
Sophie Burton-Jones: Yeah, Although it's that honours to go back to the start, perhaps designing the way the contracts are structured slightly differently when you're going out to contract to allow for scope changes within a certain degree. You're kind of saying, look, we want to potentially do this upfront or having some sort of statement of work element attached to the contract which covers certain optional services and things like that a bit more than perhaps they happen sometimes now.
Tracy Laforte: Yeah, I think there's, I mean, even prior to the new Act coming in, especially with digital, there'd be things that we would sit down with our end users and go, right, okay, even if it's a post of a module, because they haven't got the finances to purchase that module straight away, you kind of go, we'll build it into the contract as "in the future, we reserve the right to procure this". It covers you. And that's not a change notice because it's already within the parameters of the contract.
So I think going forward, people are going to have to think a little bit differently, be a little bit more wider and go, actually, what are the potentials over the life of this contract and therefore can I build them in at the beginning so that I'm not going back over and going, right, contract change, contract change, contract change. Because if you're doing that many contract change notices, it kind of screams something wasn't quite right at the beginning.
Sophie Burton-Jones: Yeah. And I guess it's also looking at the standard forms of contracts, the NHS standard terms, any of the framework contracts, do they deal with that in a way that you need them to?
Tracy Laforte: Well, we know that the NHS standard T&Cs are going to change when they're going into what's considered public body terms of conditions, with NHS conditions being an add-on as an appendix. So it'd be interesting to see what that lands, because at the moment in the NHS environment, we've been quite lucky that the fact we've got our own T&C's that allow us to do certain things the same way.
So once we're all under the same, if you like, T&Cs conditions, does that alter things and therefore do we see more things going scheduled? But as we know, the schedules don't ride over the main T&Cs. So it's how you set your precedents going forward to make sure that you cover all your bases.
Sophie Burton-Jones: Well, still lots to come really, to work out how it's all going to play out in practice. Just one final question for you. Do you think the changes that we've been talking about and some of the other changes in the Procurement Act are going to impact supplier behaviour massively going forwards? Or do you think it's going to be more of the same ultimately?
Tracy Laforte: At least for the initial first couple of years, while everything's bending down, I think we may see more challenges, especially if people use a competitive flexible procedure and they don't publish the right notices at the right time if they make a change. Because we know that there's potential flaw there if you suddenly go, right, we're going into a two-stage process, then we introduce a competitive process we haven't published. There's all sorts of trip hazards as we go forward. So I think that's one risk.
I think we've talked about performance measures, KPIs and metrics. Again, I think that will alter people's behaviours because it'd be a case of really got to be on my toes and making sure that we're publishing the right things.
The debarment piece, you know, suppliers are really, really worried about what that means. I mean, obviously, it means you're out of the public body for five years. But as a supplier, what gets you on a debarment list as an automatic default? I think understanding that is going to be quite monumental for suppliers and for us too, because the last thing you want to do is recommend someone for debarment but all they did was deliver it. Don't use it as a weapon. I think that that's the thing about how things start to settle.
Yeah, I think suppliers will be more likely to challenge on a process. I think we will see some behaviours where people just almost go over and above because they feel they've got to. And that may not be a bad thing in some senses, but is it pushing it the wrong way?
Sophie Burton-Jones: Well, also, is it adding cost that you don't really want?
Tracy Laforte: Exactly.
And we talked about medical devices, so the changes in clinical coding, we saw the impact of that where suppliers actually said we're exiting the market. We're no longer going to manufacture those goods. Are we going to see some of that with some of this with the Act?
It is a very much a watch it and see over the next 12 months.
Sophie Burton-Jones: As we say, like to keep things interesting in the world of procurement.
Tracy Laforte: It's never boring, never boring.
Sophie Burton-Jones: But then that makes it a great career. We're trying to get more people into procurement that is the sales pitch.
Tracy Laforte: Well, I've been doing it now 27 years, so yeah. It's about time for some new entrants, I think.
Sophie Burton-Jones: Look, thanks very much for your time today, Tracy, and good luck with continuing all the hard work, managing all things procurement related, particularly in this new Procurement Act world.
Tracy Laforte: Thanks, Sophie.
Sophie Burton-Jones: No problem.
And I mean, at Mills & Reeve, we're very happy to discuss legal queries you might have around Procurement Act. We've got a full team of people who can help you with that kind of thing, and also contract management, generally, whether caught by the Act or not.
Our individual contact details are available on the website at mills-reeve.com.
Tracy, thank you very much for joining and thank you to everybody listening to this episode of Talking digital health by law firm Mills & Reeve.
Tracy Laforte: Thank you.