Summary: Mr X complains there was fault in the way the Council dealt with a tender process he took part in. The Ombudsman will not investigate Mr X’s complaint further. It is unlikely we could achieve a worthwhile remedy and Mr X may challenge the decision in court.

The complaint

1. Mr X complains there was fault in the way the Council dealt with a tender process he took part in.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

3. Tenders for contracts above a certain size are subject to the Public Contracts Regulations (PCR) 2015. The contract that Mr X placed a bid for was subject to the regulations. Where tenders are subject to these regulations, companies have the right to challenge the outcome in court. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I contacted Mr X and spoke to someone at his company. I looked at the information Mr X and his company provided. I also took account of the Council’s response to the complaint and the information it provided.
5. I considered the Ombudsman’s jurisdiction to investigate complaints.

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What I found

6. Mr X’s company entered a tender to provide services to the Council. Mr X’s company and another company’s tender scores were tied. As a result, the Council invited both companies to respond to a tiebreaker question in December 2018. The deadline for their response was in January 2019.
7. The Council required tie-break responses to be emailed to a specific tender email address the Council set up for the process.
8. On 14 March the Council wrote to Mr X to say his company had not been successful. This was because that Mr X’s company had not replied to the tiebreaker question. The letter stated there was a 10-day standstill period and it invited queries to be sent to the same email address used for the tie breaker responses. On 28 March the Council extended the standstill period until 3 April 2019.

Mr X’s position

9. Mr X told me he did email the Council to answer the tie-breaker question. He says he sent an email replying to the question on 2 January. So, when Mr X received the Council’s letter in March, he emailed the Council to query it.
10. Mr X sent me a copy of his 2 January email and emails sent on 20, 21, 28 and 29 March questioning the outcome and sending a copy of the 2 January tie-break response. The email Mr X sent on 2 January and all his March emails questioning the outcome were addressed to the Council’s specified tender email address.
11. Mr X complained to the Council in April. He felt the outcome was unfair because he had replied to the tiebreaker. Mr X later sent the Council evidence of the email sent on 2 January. This was an image of the 2 January email that the company had sent. Mr X believed the Council caused the non-receipt of the email by blocking the company’s emails.
12. Mr X also provided a copy of a telephone bill. This indicated some attempts to call the Council on 20 March. Mr X told me he spoke to several officers during the standstill period, but they stated they could not give him any information. Mr X says on 8 April an officer called him stating the Council had received multiple emails about the tiebreaker question. He says the officer told him verbally they would be granting him the contract.

The Council’s position

13. The Council responded to Mr X’s complaint on 25 April. It stated the standstill period allowed issues to be raised before the tender was actually awarded. It stated Mr X’s company first contacted the Council on 8 April. Because the standstill had ended, the contact had already been awarded.
14. The Council stated the evidence of the email Mr X sent had been considered by its IT department. The IT department checked the Council’s systems and found no evidence the 2 January email had been received. Because the issue was not raised during the standstill period and as there was no evidence of fault by the Council it said it would not consider the issue further.
15. In a further response, the Council stated that its IT department had looked at all email reports for the period 10 December to 10 January 2019. These would show any email that it received but blocked for various reasons. It found no emails had been received from the company email address Mr X had used.
16. Mr X eventually complained to the Ombudsman because he felt the Council failed to consider the evidence he provided when looking at his complaint. He noted that losing the tender would have a significant financial impact on his company.

Analysis

17. I have considered the information provided by Mr X and the information the Council provided in response to his complaint. I do not consider the Ombudsman should investigate Mr X’s complaint further.
18. Mr X is adamant that his company responded to the tiebreaker question and he has provided some evidence that he sent an email to do so. The Council explained it had no record of receiving the email. While I understand Mr X considers the Council may have blocked his emails, the Council checked its records and says this was not the case. It confirmed it has no record that the email was received. As a result, the reason the email was not received is unknown.
19. Even if we were to investigate the complaint further, I consider it is unlikely we would establish what specific technical problems may have occurred and what caused these. Unless the Ombudsman could establish on the balance of probabilities that the non-receipt of the email was directly caused by the fault of the Council we could not provide a remedy for Mr X’s complaint. The non-receipt of the email is not itself maladministration by the Council.
20. Also, I do not consider the Ombudsman could achieve a worthwhile outcome to Mr X’s complaint. As the Council has already awarded the tender to another party, it is not possible for the Council to review the evidence or to consider Mr X’s response before awarding the contract.
21. Where someone enters a tender that is subject to the Public Contracts Regulations (PCR) 2015, they have the right to challenge the outcome in the courts if they consider it was flawed. If Mr X seeks compensation for significant financial loss as a result of negligence by the Council, I consider it would be reasonable to expect Mr X to challenge the matter in court.
22. I note what Mr X told us about telephone calls with council officers during the standstill period and on 8 April. However, these were not raised as part of Mr X’s complaint to the Council. As I cannot provide a worthwhile remedy to the substantive issue of Mr X’s complaint, I do not consider there are grounds for me to solely investigate the concerns Mr X raises with us about the way his contacts were dealt with.
23. For the reasons set out above, I do not consider the Ombudsman should investigate Mr X’s complaint further.

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Final decision

24. I have discontinued my investigation into Mr X’s complaint because Mr X has an alternative remedy. Also, because the Ombudsman cannot provide a worthwhile remedy to the substantive issue of Mr X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman