Summary: We will not investigate this complaint about public procurement processes because there is not enough evidence of fault to warrant an investigation. There are also other bodies better placed to consider parts of Mrs X’s complaint. It would be reasonable to expect Mrs X to go to court if she considers the Council has acted unlawfully.

The complaint

1. Mrs X complains about the Council’s handling of a procurement process. She complains the Council has failed to tender the contract fairly as she is aware of other tenderers failing on the same points as her company but then being awarded contracts. Mrs X would like the Council to run the process fairly and ideally award her company a contract to provide services.

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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 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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, 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, section 34(B))

3. 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 considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council carried out a procurement exercise in 2023 for a contract to provide services. Mrs X tendered for the contract but was unsuccessful. She says she is aware of other companies that were unsuccessful in tendering at the same stage as her company, which the Council has now awarded contracts to.
7. The Council has responded twice in writing to Mrs X’s challenges against its decision. It has also met with her to discuss these issues. The Council has explained in detail how the moderation panel considered the responses Mrs X’s company had provided and why these had not scored sufficiently to result in a successful bid.
8. The Public Contracts Regulations 2015 intend to make public procurement more accessible for small businesses. The guidelines apply to all public procurement contracts over a certain financial threshold. Where procurement contracts are above the financial threshold, a government body called the Public Procurement Review Service can investigate further.
9. Mrs X clearly disagrees with the Council’s decision but the interpretation of contract terms or procurement law are matters it would be reasonable for Mrs X to seek legal advice about and take to court or the Public Procurement Review Service (if applicable) if she thinks the Council has acted unlawfully.

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Final decision

10. We will not investigate Mrs X’s complaint because:

• there is not enough evidence of fault in how the Council handled the procurement process to warrant an investigation;
• there are other bodies better placed to consider Mrs X’s complaint, and;
• Mrs X has the right to seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman