Public Procurement: Public Money Risk, Episode 2

Friday Durge

It's no great secret that it’s a struggle to find any competence anywhere in the public procurement space. Indeed, there's nearly none. What's worse, is government has such a distorting effect that the resulting disease of malpractice infects 1st tier private sector suppliers to them as well as well as their own house. It's like watching a slow version of COVID spread amongst anti-vax. Anti-competence keeps good practise out and infects everyone with bad practise through the chains.

Public Contract Regulations have a very strict set of rules around what can and can't be done and also whether or not a procurement is fair and open is a strict requirement of public procurement regulations. Which in the UK we don’t take seriously and seem to be taking less seriously now we’ve left the EU.

In the dim and distant past (last year), a council procurement that we expressed an interest in, was run by the council as a complete mess! The questions were not particularly useful, the budget small and the process, as run by the body, was so useless, there were 4 attempts to send us the right documents. There were also hints that the council had already selected their supplier in any event.

Still, we took a punt on it. It was a useful learning and exposure exercise for some of those we had on the team in any event. We could do it for the price, since it helps further another client’s project as well.

It became clear pretty quickly that's the council hadn't really got a handle on how to procure this sort of service. The clarification process was a total mess, the evaluating panel specialisms were not provided and of course not enough information was provided to deliver the contract in response to clarification (which is a potential indicator that they have a supplier already).?

I wasn't that heavily involved in writing the bid, to provide the experience and opportunity to others. I have a couple of stock questions which I normally asked gather the expertise of the procurement officers and the evaluating panel normally. Granted, they weren’t asked.?

The buyer hadn't submitted the final set of social value questions by the time the bid closed (it was only after the closing date that we got to see them). There were also no accessibility standards, which I found strange. It was also clear they didn't really understand what either TOMs or Accessibility meant and they'd clearly not used the TOMs before.?

It was only after we got the results back this week and checked the ITT docs, that I found there were several questions they forgot to ask and several others they didn’t known they needed etc. this went back and forth several times.?

So, true to form, the procurement’s results were significantly late! Two months late to be exact. For a project that had to be delivered by March 2022.

Out of the [pretty certain it’s] two suppliers, we came second (last). This is despite the feedback presented, showed we got:

• Quality Criteria:
• Future ideas (10%): Joint highest
• Website hosting & Maintenance (30%): Highest
• Cycle planner (not defined – 30%): Second Highest. Though claimed we didn’t answer the question. That would be correct, but it is not defined anywhere in the RFQ/ITT. The bid itself was a journey sharing platform, not a cycling platform. So this is the unfair point. But the fact it wasn’t defined, means we didn’t answer the question that didn’t exist, but we came second. Hence, there were only two bidders. One of whom must have known of the cycle planner. So it was the incumbent.
• Accessibility (15%): Second highest – Strange, as this part was a migration, so it was their own accessibility they were marking and we explained ours in the bid. This was not in the scoring criteria in the ITT strangely enough. So it’s not clear what hey marked
• Implementation period (5%) – joint highest score
• Social Value:
• Social value (10%): Highest score?

It's pretty clear there was already a selected incumbent here, who was given information that everybody else (ie just us) weren't.?

Sadly, the value of the procurement is low enough that a judge wouldn't bother considering it. But having provided that feedback, the buyer has since tried to recall it. With that inimitable confession that they have filled in a document template meant for a different tender.

It's a good job we took a copy!

Despite what the buyer says, this is actually our feedback. The document they resubmitted to us was the same, only with the table removed. The text definitely does apply to our submission. So I think the only difference is the format. Notwithstanding how incompetent the council may or may not be, or the row headings used, the feedback does make sense and it does refer to our documents.

If anyone knows a junior commercial associate solicitor who fancies taking a punt on this, it's a straightforward win, but because it's under threshold it'll be a bit of a pointless exercise unless you're doing it for the principle of lawful public money spend. It might be a good case study for a junior to gain some experience. Happy to hand over the evidence, but we won't chase it ourselves. Not worth anything to us.