Many principles of the Compact still haven't taken root in the public service contracting environment and “inherent unfairness is all around”, said Bates Wells & Braithwaite's Julian Blake yesterday, speaking at the NCVO Trustee Conference.

Blake, a partner at the law firm, said: “It's true to say and well worth keeping in mind, that a pretty high percentage of the processes that we deal with on a daily basis are open to challenge. Not just when looking through the assessments, but in relation to the procedures themselves and how they are set up. I mean inherent unfairness is all around.”

Describing some of the cases that he has seen in the past, he also painted a picture of gross incompetance from commissioners where sometimes the problem is as obvious as a miscalculation of the score:

“We've had cases where at the debrief stage you get the marking back and literally if you look at the marking of the winning bid, and you look at the marking of the lower bid, actually the lower bid one but for some reason the commissioners added up the figures wrongly and they awarded the contract to the wrong supplier,” he said.

Blake said that despite years of campaigning and “a great deal made of the Compact between government and the community and voluntary sector every year, for a number of years”, the procurement process is still weighted in favour of the public sector:

“There are a number of points that came out of the Compact that really haven't taken root and we are still in an environment where there is inequality of bargaining power which is what the real issue was. It was that the public sector commissioner can, or can feel that they can impose more or less whatever terms and conditions they feel like on a small charitable service provider, or a charitable service provider. And didn't really think of the contracting process in the same way as they would with a commercial provider. In some sense charities were, shall we say a softer touch in terms of the contracting process.

“Now that fundamental reason for the Compact really hasn't won through yet, that's still part of the difficulty with the encounter.”

Blake conceded that some advances have been made in areas such as full cost recovery, length of contracts and the acceptance of inflation in relation to price increase. He advised however that even in these areas improvements can be made. For example commissioners have accepted a three-year standard minimum contract where they should instead be looking at the appropriate length of time, he said, which may be as long as five years.

Other matters such as employee control, where a contract may hold a clause giving commissioners the right to dismiss staff and leave a charity open to employment law disputes if agreed to remain a problem, Blake told civilsociety.co.uk. Unilateral rights to vary, where commissioners can change a contract at any time, and fair pricing also still pose problems for the charity sector, he said.