Summary: Ms X complains about fault in the Council’s tendering process. She says it incorrectly applied its assessment criteria which led her to organisation missing out on a contract. She also complained about poor complaint handling. The Council is not at fault.

The complaint

1. Ms X complains about fault in the Council’s tendering process. She says it did not correctly apply its assessment criteria which led to her organisation wrongly missing out on a contract. She wants the Council to acknowledge its mistakes, apologise, compensate her organisation for the resulting financial loss and review its tendering procedures. She also says the Council did not follow its own complaint’s policy when handling her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I read Ms X’s complaint and considered documentation she provided.
5. I made enquiries of the Council and considered the information it sent me.
6. Ms X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Background information

The Council’s procurement process

7. Each Council has a formal framework which governs how it makes financial decisions including those about procurement. This will include procedures for awarding different types of contracts. Bids must be evaluated in line with the advertised criteria.
8. Harlow Council has a procurement strategy which sets out the actions required when planning for and procuring services. This set out five stages which include advertising, inviting and evaluating tenders, award and implementation and contract and performance management. It uses an online tendering portal as part of its procurement process.

The Council’s complaints procedure

9. Councils have complaints procedures to support the effective handling of complaints. Harlow Council’s procedure has 3 stages:
• Stage 1 – response from a service manager;
• Stage 2 – response from a Head of Service;
• Stage 3 – response from the Chief executive or an appointed senior manager.

What happened

10. In November 2017, the Council invited organisations to tender for a contract to provide a service in its area. It publicly listed the opportunity on its online tendering portal, advertised in a local newspaper and sent invitations to tender to interested organisations.
11. The online portal contained several documents that were publicly available for interested bidders to view and download. These included:
• A detailed service specification which set out services the successful organisation would be expected to provide;
• A quality evaluation document detailing how the Council would evaluate bids and ensure the quality of service provision;
• A list of evidence and documentation organisations must include as part of its bid submission.
12. The specification included the Council’s requirement for evidence and assurance that the bidder could provide a quality service. It said services must be provided to the requirements of a recognised quality standard mark or “to an equivalent quality assurance standard to be agreed by the Council”. It also said bidders must provide “certificates, registrations and any other evidence to meet the Council’s requirements.”
13. In December 2017, Ms X submitted a bid for the contract on behalf of her organisation. As part of the bid, she said her organisation was in the process of applying for a recognised quality assurance mark.
14. The Council received one other bid.
15. It evaluated the two bid submissions. It decided it needed to clarify some of the information provided in both bid submissions before it could make a decision on the contract award.
16. In January 2018, the Council wrote to Ms X’s organisation with its clarification questions. It also raised clarification questions with the other bidder and gave both organisations the same deadline to respond.
17. In February 2018, Ms X wrote to the Council to tell it her organisation had passed the first stage of its quality assurance mark application. It said it anticipated it would achieve final stage accreditation in July 2018.
18. The Council considered both bid submissions. It decided neither submission met the required standard to award the contract. It considered its options. These included: abandoning the process; bringing services in-house; or continuing with the tender process to seek an improvement in the quality of the bid submissions.
19. In March 2018, it decided to invite both organisations to improve the quality of their bids. It wrote to Ms X and the other organisation to say it had not yet decided the contract award and it would be sending further clarification questions in due course.
20. The Council appointed an independent consultant to assist it to set clarification questions.
21. In April 2018, the questions were finalised. Both organisations were sent the same questions and invited to respond.
22. Ms X’s organisation and the other bidder responded providing further information for the Council.
23. The Council considered the bid submissions from both organisations and scored the two bids against its scoring criteria. It scored the other organisation higher and decided the Council should award the contract to the other bidder.
24. In June 2018, it wrote to Ms X to advise her of the outcome. It sent Ms X details of its scoring evaluation for Ms X’s organisation, including rationale for the scores given. It also sent Ms X the comparative scores of the successful bidder.
25. Ms X was dissatisfied with the outcome of the tendering process and wrote to the Council. She made several points, including that the tender specification set out a requirement for the successful organisation to hold an appropriate quality assurance mark. She said the successful bidder did not meet this requirement. She said her organisation had passed the first stage of the quality assurance mark application process and was expected to achieve the final stage in due course. She asked the Council to review the decision.
26. In July 2018, the Council responded to Ms X. It said when it first evaluated the bid submissions, no bidder met the required quality assurance standards. It said the clarification questions allowed bidders to reflect on what they had already provided and submit further information to improve their bids. It said it made the final decision based on all information submitted.
27. Ms X remained dissatisfied and in August 2018, wrote again to the Council. She said the successful bidder did not hold the required quality assurance mark. She said she had told the Council her organisation was in the process of acquiring it at the time of the bid submission and when it obtained the first stage in February 2018. It had now been awarded the full quality assurance mark. It said the Council should have taken this information into account when making its decision.
28. The Council responded saying it would not re-take its decision and would not correspond further on the matter.
29. Ms X remained dissatisfied and brought her complaint to us. In addition to her dissatisfaction with the tendering process, she said the Council had not handled her complaint in line with its procedure or advised her she could bring her complaint to the Ombudsman if she remained dissatisfied.
30. In its response to our enquiries, the Council said when it first evaluated the bids in December 2017, neither organisation fulfilled the quality assurance requirements or held a quality assurance mark. It used its discretion to invite the organisations to submit information to improve their bids. When the panel met again in April 2018, again neither bidder held a quality assurance mark, but it evaluated all the information received and scored both bids against the published criteria. The other organisation achieved a higher overall score. It had considered all the information and was satisfied the successful bidder could meet its quality and service requirements. It had scored higher than Ms X’s organisation and the decision was taken to award the contract to them. It said it had been fair and transparent throughout the procurement process. Although Ms X’s organisation did achieve the quality assurance mark in July 2018, this was after the bid submission deadline and after the decision had been made. Because of this, it had not been taken into consideration as part of the decision.
31. In relation to complaint handling, the Council said Ms X had addressed her letters directly to the managing director and copied in Council members. This effectively circumnavigated stages 1 and 2 of the complaints’ process. It said the managing director had asked a senior manager to respond to her letter, and the response provided to Ms X was the equivalent of a Stage 3 response. It said information informing her she could bring her complaint to the Ombudsman if she remained dissatisfied was freely available on the Council’s website.

Analysis

32. The service specification included details of the quality of service the Council required and how organisations could evidence this and provide assurances of quality to the Council. It did not set out specific qualifications or specific quality assurance marks as essential criteria. It invited organisations to submit evidence of these and any other evidence showing it could meet the Council’s requirements. The Council is not at fault for awarding the contract to an organisation without a quality assurance mark.
33. There is no evidence of fault in the tendering process. The Council advertised and invited organisations to submit tenders. It provided information related to the service specification, required documents and scoring criteria for all interested organisations to view. It evaluated the quality of each bid against its criteria and awarded each organisation a score, using information available at the time. It made its decision and communicated this to Ms X along with details of scores awarded and rationale for these scores.
34. 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. I have found no evidence of fault in how the Council made its decision to award the contract to the other organisation, so cannot question the decision made.
35. Although the Council did not consider Ms X’s concerns under its complaints’ procedure, it responded appropriately to her complaint. In this case, the Council did not signpost her to us in its final response, but she brought her complaint to us in any case. We have now fully investigated her complaint, so this did not cause Ms X any injustice.

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Final decision

36. I have completed my investigation. I have found no evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman