Decision : Upheld
Decision date : 30 Sep 2021
The Ombudsman's final decision:
Summary: Mr S complains about the way the Council administered the tendering process for a contract his company bid for. He complains about the notification of the interview date, the way the Council’s panel handled the interview and presentation, and the Council’s responses to his request for feedback and a complaint. We uphold the complaint, because of some inadequate record keeping, which does not meet the expectations of either procurement policy or the Ombudsman’s principles of good administrative practice. The Council has agreed to our recommendations.
- The complainant, whom I shall refer to as Mr S, complains about the Council’s procurement process, for a contract his organisation bid for. He complains:
- the Council marked them down for presentation style. But:
- this was partly due to issues with the compatibility of hardware; and
- presentation style was not listed as an assessed criterion;
- about concerns about the scoring. He gives an example of giving four examples of how they met the criteria for one question. Yet the panel still marked their response as unsatisfactory;
- about delayed and poor feedback;
- the Council’s response to his complaint, including:
- it was factually incorrect. It did not note that they were stopped from answering questions based on the time available. But they were not allowed the full hour allotted to them;
- the responses about: the objectivity of the scoring, the process of moderation; and a conflict of interest of a panel member;
- it did not follow the correct version of its complaints procedure when dealing with his complaint.
- As a remedy, Mr S seeks:
- an apology;
- the Council to change its procedures;
- reimbursement of their travel and accommodation costs; and
- a payment towards the time spent in taking part in the presentation process.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Mr S;
- made enquiries of the Council and considered its response;
- spoken to Mr S;
- sent my draft decision to Mr S and the Council and invited their comments.
What I found
Legal and administrative background
- Public procurement is the process whereby public sector organisations acquire goods, services and works from third parties. It ranges from routine items (e.g. stationery, furniture or printed forms), to complex spend areas (e.g. construction, waste contracts).
- Councils must adhere to the national Public Procurement Policy. The over-riding policy is that all public procurement must be based on value for money, which is defined as “the best mix of quality and effectiveness for the least outlay over the period of use of the goods or services bought”. This should be achieved through competition, unless there are compelling reasons to the contrary.
Good administrative practice
- The Ombudsman publishes ‘Principles of Good Administrative Practice’, which we use as a benchmark for assessing the standards we expect when we investigate the actions of local authorities.
- One of those principles is about being open and accountable. This includes keeping proper and appropriate records and having clear policies and procedures.
- In response to the COVID-19 pandemic we published an addendum to our Principles. This recognised the pandemic had placed unique pressures on councils and that emergency working would likely cause backlogs, including in responding to complaints. But we asked councils to let complainants know if they were going to delay a complaint response.
- Mr S manages a consultancy company that bid for a contract with the Council. The tender brief for the contract said the work to be done included review, consultation (including with a long list of partner organisations), research, and writing a new document.
- The tender document had a section on the selection process. This said:
“The Contract will be awarded to the most economically advantageous tender - this is a combination of the cost/budget provision and quality/service aspects of your bid, following evaluation of offers based upon the factors…below (the percentages in brackets indicate the ‘relative significance’ of each criterion).
- QUALITY 50%
- PRICE 10%
- PRESENTATION 40%...
Details of the Presentation will be provided to suppliers electronically via The CHEST by 18 December 2019*. The date for supplier presentations has provisionally been set for Tuesday 7th January 2020 *
*indicative dates only”
- The tender document had further information about how the Council would assess quality, price and presentation. It also noted:
- “Tenderers should note that regardless of a bid’s overall merits, if evaluating officers (acting reasonably) consider there to be a fundamental weakness likely to impact adversely upon the supply of products or services, then grounds will exist to exclude the bid from further consideration.”
- the scoring system it would use.
- In relation to the presentation, the tender document said:
- “Bidders will be invited to attend a presentation/interview, to further demonstrate understanding and appreciation of the tasks to be undertaken and show evidence of relevant skills, knowledge and experience.”
- “The bidders invited to interview will each be asked the same questions (to be established by the evaluation panel) and scored out of 5 as per the scoring matrix shown further above within this [Invitation to Tender]. This will be 40% of the overall total score.”
- “The presentation and subsequent questions asked by the panel will be scored a total of 40% and will last around 40 minutes.”;
- if an applicant wanted to show their presentation on the Council’s laptop, they needed to send it to the Council by a set time a few days later;
- “If you are bringing your own laptop, please make sure you have the correct adaptor if you are bringing an Apple Mac laptop.”
The request for feedback
- Mr S asked for feedback and had to chase a response, which the Council provided around two weeks (11 working days) after Mr S’s first request. The response advised:
“The Panel did not feel the presentation was dynamic and were not confident in the company engaging the range of stakeholders in the consultation stage; and
The Panel did not feel from the presentation and answers to the questions that the Company were bringing anything considerably new to the arts partnership in terms of approach.”
The Council’s response to Mr S’s complaint
- Mr S asked to complain on 16 March 2020. The Council responded at stage one of its complaint procedure on 11 June. The Council’s response set out the following.
- It apologised for the delay in responding, which was due to the first COVID-19 lockdown;
- “… the [Council] had provided indicative dates … in relation to providing details of the presentation and holding the event, as these dates were clearly recorded as indicative, it would be reasonable to assume that the participants would have been monitoring e-mail activity over this period..”
- “Each tenderer was informed that they would be allowed 3 minutes for an introduction, 15 minutes maximum for their presentation and that the presentation and subsequent questions would last around 40 minutes. The appointments were spaced only 45 minutes apart from each other.”
- It acknowledged there might have been a delay with one of the earlier presentations. But it said it was confident it was consistent in the time it allowed each tenderer (although it did not have a document to confirm this).
- It accepted its feedback was too brief and “did not offer sufficient explanation to enable [Mr S] to have a fuller appreciation of where they fell short”.
- The Invitation to Tender document did not include the methodology for scoring cost. This would normally be expected. But it noted the quality scoring was set out in the tender documentation.
- It found some issues in the scoring and process of moderation:
- “The scoresheets were incomplete in terms of the name of the scorer for two out of four of [Mr S’s] scoresheets (although the scorer identity has been confirmed during this investigation process).”
- “It may have proven beneficial to record the time of each session on the scoresheet…”
- “Some of the notes were far too brief in comparison to others.”
- “Whilst there was a process of moderation, there are many instances when the scorer amended their score by simply overwriting their original score, in many cases making the original score ineligible. There is no record of the discussion around moderation to support the amendments, nor is this a requirement under current practice.”
- “There is a lack of an audit trail for the moderation to support the reasons for amending individual scores. These will be addressed, although they don't impact on the award.”
- Regarding a complaint about a conflict of interest of a panel member, the Council asked the person with the alleged conflict (from an outside organisation) about this. They advised “..they had no connection with any of the representatives who presented on the day.” The Chair of the panel advised the person had in no way lobbied for the winning tenderer in its deliberations.
- Mr S asked to escalate his complaint on 21 July. The Council’s 4 August stage two response advised the following.
- Its view was 11 working days to provide feedback was not unreasonable. But it did accept it needed to improve its feedback to unsuccessful bidders.
- From the start of the national lockdown on 23 March, the Council had ‘stood down’ non-essential services (until mid-May 2020).
- It did however accept a delay in responding to the complaint after it re-opened its offices.
- It could not investigate allegations by Mr S of inaccuracies in the stage one response, as Mr S had not provided further information.
The Council’s response to my enquiries
- Mr S was unhappy with the Council’s responses, so he complained to the Ombudsman. I made enquiries after speaking to him.
- The Council sent me its panel members’ working notes from the presentation and its documents showing the scoring of the bidders. These show some changing in the scoring of panel members. There is no explanation in any document the Council sent me about the reasons for the changes, or how a panel arrived at its decision. Some of the sheets do not have the name of the author.
- The sheets for Mr S’s company have considerably more detail in them than the feedback the Council later provided. These include notes about significant weaknesses in Mr S’s presentation and interview, but also strengths.
- The Council noted the decision of the panel had undergone a process of moderation, although it did not send me any records of this process.
- The Council advised it had:
“… initiated a review of our Contract Procedure Rules and have subsequent plans for a full review of our processes and practices, all outlined within our service plan for 2021/22.”
Was there fault by the Council?
The administrative arrangements for the presentation
- The Council had set out indicative dates for the presentation. Against those dates, it was late in sending out notification of the presentation. But it did send the notification out on a working day. There were other working days between that date and the date of the presentation. The Council is not responsible for Mr S's business closing dates. And as the Council had given the indicative date for the presentation, I cannot criticise the Council for its timetable.
- Mr S did experience some problems with technology on the day. But Mr S did not ask the Council beforehand for clarification about the technology. So I cannot see any administrative fault by the Council in those problems. I cannot uphold this part of Mr S’s complaint.
The Council’s record keeping
- One of the key principles in procurement is transparency. Bids must be evaluated in accordance with disclosed criteria. Similarly, the Ombudsman’s principles of good administrative practice have an expectation of openness and accountability – for example in keeping accurate records.
- The Council’s complaint response identified some faults in the records the panel kept on the day. I agree with the Council’s analysis. At a minimum, I would have expected the authors to name themselves. And for there to be explanation somewhere for the instances of changed scoring.
- More generally there is a lack of a record of how the Council’s panel arrived at its collective decision (including the process of moderation it says took place). This is not transparent. Nor does it meet the Ombudsman’s expectations for record keeping, openness or accountability. A third party viewer is unable to understand the process by which the Council’s panel and moderator arrived at their decisions about the contract. So I uphold this part of Mr S’s complaint.
Mr S’s concerns about a conflict of interest
- I would have expected the Council to have checked about conflict of interests before the interview process. The Council has not sent me any record about this. So I find fault with the lack of a record this was considered.
The timing of the interviews
- It would have been better if the panel had kept a record of how long each bidder was given. I find fault that it does not have that information. However, Mr S says he expected to have an hour for the interview. But the Council’s early January letter to him said:
“The presentation and subsequent questions asked by the panel will be scored a total of 40% and will last around 40 minutes”.
This is broadly what the Council told Mr S in its complaint response. Mr S did have roughly that time to make his presentation, although the lack of records mean I have no way of knowing what time the panel allowed the other bidders.
The assessment criteria and feedback
- I cannot decide on the merits of Mr S’s presentation and whether the panel should have awarded Mr S a higher score in any part of the presentation. This includes the example he cites in his complaint.
- Mr S complains the feedback said the panel had concerns about his presentation, but this was not an assessment criterion.
- The feedback the Council gave Mr S says:
“The Panel did not feel the presentation was dynamic and were not confident in the company engaging the range of stakeholders in the consultation stage…”
- My reading of the feedback is that what the panel was assessing, from the presentation, was Mr S’s “… relevant skills, knowledge and experience” (see paragraph 15); ie how the presentation and interview evidenced the company’s ability to consult. I cannot make an assessment of the merits of the panel’s view. But I do not agree with Mr S's claim that the panel was using criteria outside its remit. So I do not see any fault with this part of the complaint.
- I do, however, uphold Mr S’s complaint that the feedback provided was too brief, given the information the Council provided me contains more information that could have been fed back with a fuller explanation. I find fault with this part of the process.
The complaint response
- The Council did change its policy during the processing of the complaint. Without the delay, caused by the start of the pandemic, it would likely have responded before it introduced its new procedure. So it would have been good practice for it to consider whether to use the old procedure with Mr S’s complaint.
- Against that, there might have been good reason (perhaps due to ongoing resource pressures due to COVID-19), why the Council had good reasons not to use the old procedure.
- But as Mr S retained his right to complain to the Ombudsman, I do not believe this caused a significant enough injustice to warrant the public expense of further investigation.
Did the fault cause an injustice?
- If the Council had acted properly, I cannot say who it would have awarded the contract to. It might have been properly awarded the contract as it did and, so, Mr S’s situation would have remained the same. I cannot therefore decide with any certainty the Council’s actions have resulted in a loss of revenue for Mr S’s company. So I cannot recommend the Council compensate him for his costs.
- The Council says the faults it found in its complaint response did not affect the award of the contract. The problem is that inadequate records create some uncertainty about this. That is an injustice. And the Council’s incomplete feedback also caused Mr S some uncertainty and frustration. Mr S was also put to some time and trouble that might have been avoided if the Council provided him with better feedback or records about its deliberations on his bid.
- The Council has agreed that, within a month of my final decision, it will:
- write to Mr S providing a formal apology for the faults I have identified;
- update the Ombudsman on its progress on the work it advised it was undertaking on:
- the feedback procedure and;
- its Contract Procedure Rules processes and practices.
- better records of decisions, including moderation and checking conflict of interests;
- more comprehensive feedback.
- I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman