Summary: We will not investigate Mr X’s complaint about the Council’s termination of a commercial contract. This is because it would be reasonable for Mr X to take the matter to court. Mr X’s complaints about the Council’s DBS checks are late and we will not investigate his complaint about the Council’s decision not to award his company a new contract as there is not enough evidence of fault in the way it reached its decision.

The complaint

1. The complainant, Mr X, complains the Council wrongly terminated a contract for services, did not award his company a new contract despite his tender scoring full marks for price and failed to carry out DBS checks on two employees, having lost their documents.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

7. Mr X’s complaints that the Council failed to carry out DBS checks and lost employee documents relate to matters which took place more than 12 months before he complained to the Ombudsman. These complaints are therefore late. I have seen no good reasons for the delay in complaining to us and I have therefore decided not to exercise our discretion to consider these issues further.
8. Mr X’s complaint about the termination of his contract is also late. However even if he had raised this complaint in-time we would not investigate it. This is because the issue is a contractual dispute which it would be reasonable for him to raise at court. The terms of his contract were clearly defined and whether the Council was entitled to terminate it is a matter of interpretation which the courts are better placed to determine.
9. Mr X’s complaint about the Council’s decision not to award his business the new contract is in-time but there is not enough evidence of fault to warrant further investigation. The procurement process invited tenders for the contract and the Council gave each tender a score based on how well it met the brief. The scores themselves are a matter of professional judgement and we are not an appeal body; it is not our role to re-score the tenders or to say the Council should have awarded the contract to Mr X. The Council has explained the reasons Mr X’s tender scored lower than others and I have seen no evidence of fault in the way it reached its decision. If Mr X believes the Council’s decision was flawed he may wish to seek legal advice about challenging it.

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Final decision

10. We will not investigate this complaint. Several of the issues Mr X has raised are late and there is not enough evidence of fault affecting its decision to award the contract to a third party. If Mr X believes the Council wrongly terminated his contract it would be reasonable for him to take the matter to court.

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Investigator's decision on behalf of the Ombudsman