Summary: We will not investigate this complaint about the way the Council carried out a contract tender exercise. We cannot achieve the outcome the complainant is seeking. Also, it is reasonable to expect the complainant to ask the courts to decide whether the Council has acted unlawfully.

The complaint

1. Mr X is part of a commercial company (I shall refer to as company A) that submitted a tender response to an open tender process run by the Council. He complains the Council dismissed company A from the procurement process for not completing some mandatory requirements. However, Mr X says the requirements were within an optional section of the paperwork.
2. Mr X says the company spent time and money preparing the tender and he wants the Council to reimburse them for their costs. He is seeking over £21,000 compensation.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• 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, section 34(B))

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)

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How I considered this complaint

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

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My assessment

7. We cannot determine legally whether the Council acted unlawfully during the tender process or whether it is liable for company A’s costs. Therefore we cannot achieve the outcome Mr X is seeking. It is reasonable to expect Mr X to ask the court to decide whether the Council should pay company A to cover the cost of preparing their bid.

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Final decision

8. We will not investigate Mr X’s complaint because we cannot achieve the outcome he is seeking. And it is reasonable to expect him to ask the courts to establish whether the Council acted unlawfully and is liable to pay company A’s costs.

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Investigator's decision on behalf of the Ombudsman