TUPE Procurement Guidance

When services are outsourced, tendered or re-tendered, a transfer of employees is involved subject to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended TUPE.)

The employees have the right to transfer to the new contract with their terms and conditions of employment protected. This has implications for the procurement activity and it’s important to consider the effects this will have on your tender process.

Other than in an initial outsourcing situation, the School, College or Academy may not itself be a party to the TUPE transfer, which will be between the incumbent and the new provider. On the face of it, it might appear that TUPE should not be your concern. However, the below three significant problems often arise:

1. The new contractor may ask for indemnities in respect of the staff they are about to inherit.
2. You will want both the tender and the transfer to run as smoothly as possible, both with early and accurate provision of information and co-operation between the parties.
3. In order to price their bids appropriately, bidders will need to have access to the relevant TUPE information. If this information is not fully and accurately disclosed then this may result in bids that take insufficient account of costs, resulting in the College, School or Academy being liable for additional costs post contract award.

Consequently, it’s important for procurement teams to consider TUPE in the various stages of a procurement project, including pre-procurement stage, procurement process and contract conditions.

For more information and a list of top tips for TUPE and procurement projects please visit the Further Education Library of Procurement.