Guest post by Philip Grant in a personal capacity
1 Morland Gardens, June 2022.
A month ago, I wrote about ‘yet another twist’ in the saga over Brent Council’s plans to redevelop 1 Morland Gardens, including the demolition of the heritage Victorian villa which had been carefully restored and extended in the 1990s to become the borough’s adult education centre.
They could not award the contract which had been the subject of a Key Decision on 20 May, because the time limit for awarding it had run out at the end of May. [It appears that Brent’s Strategic Director, Regeneration and Environment, “forgot to mention” this important fact to the Scrutiny Committee considering the “call-in” of his Key Decision on 9 June.] Brent had to conduct a third procurement process to find a contractor to carry out the work.
Cabinet approved the “third attempt” on 20 June, and late on the afternoon of 14 July another Key Decision was published, to award the contract for the Morland Gardens Development. The proposed award looked rather familiar. In May, it was to award the contract to Hill Partnerships Ltd for the sum of £37,933,491. Now the award would be to the same contractor for the sum of £37,933,561.
Extract from the tender evaluation grid for the 14 July 2022 Key Decision.
The evaluation grid above is part of the process required in assessing which tender received provides “Best Value” (a statutory duty) to the Council. The fact that only one tender had been invited for this “competition” concerned me, over whether the process used was legally valid, so I raised these concerns in an urgent email to Brent’s Legal Director on 15 July.
The Officer Key Decision Report said that the award of the contract was governed by the Public Contracts Regulations 2015 (“PCR 2015”), and that it had been procured in accordance with those regulations, but it did not explain how that was the case. It had been awarded under the Network Homes Contractor Framework (“NHCF”), which it claimed allowed a direct award.
I wanted answers, and received this from Brent’s Legal Director on 18 July:
‘I would confirm that Regulation 33(8) of the Public Contracts Regulations 2015 permits inviting a single contractor from a framework to bid for a contract where appropriate and permitted by the framework. Inviting a single contractor is permitted under the Network Homes Contractor Framework and the Council had permission from Network Homes to use its framework in this way for the Morland Gardens contract.’
Part of Regulation 33, Public Contracts Regulations 2015.
I had been researching PCR 2015 and the NHCF over the weekend. I was not satisfied that this clever move by Council Officers, to effectively shift a tender already received from one “framework” (which had expired) to a new procurement process under a different framework, would comply with the requirements of PCR 2015. I replied to Ms Norman, also on 18 July:
‘I presume you are referring to Regulation 33(8)(a). Even though this does cover inviting a single contractor within a framework to bid, that still leaves a responsibility on the Council, under Reg. 37(6)(c), to fulfil all of the other obligations under Part 2 of PCR 2015 in determining which of the 'economic operators, party to the framework agreement' should be invited to bid.
It seems that the procurement procedures used for the public contract which the Key Decision seeks to award has clearly been made with the intention of unduly favouring one economic operator, Hill Partnerships Limited. This would breach the principles set out in Reg. 18. If there was no consideration of the other Lot 3 (eight or nine) contractors, then the proposed award does not accord with PCR 2015, and should not go ahead.’
As well as PCR 2015, any “High Value” contract awarded by the Council has to satisfy Brent’s Contract Standing Orders (“CSOs”), which are part of the rules set out in the Council’s Constitution. CSO 88 includes a requirement that where approval for the award is obtained from the Cabinet, ‘the Cabinet shall receive and consider a report setting out all relevant information necessary to enable it to give such approval.’
In a guest post last March, I posed the question: are Cabinet Meetings a charade? That was because many of the decisions made have been discussed in private beforehand, with the official meetings which the public are allowed to watch just used as an opportunity to tell us what a wonderful job they are doing. For the Morland Gardens contract award approval, there was not enough time for it to be properly considered before the Cabinet Meeting on 20 June.
Brent’s Legal Director is also the Monitoring Officer responsible for ensuring that the CSOs are followed. This is what I wrote to Ms Norman on 18 July, about that possible irregularity in the contract award:
‘I also believe that there is a strong case for saying that the approval given by Cabinet on 20 June does not meet the requirements of Contract Standing Order 88(c). I am attaching an extract from the letter I was about to send you which sets out my reasons for that belief, for your consideration and response, please.’
I will ask Martin to include the document I sent to Brent’s Legal Director, about the Cabinet approval, at the end of this post. If you are interested enough to read it, you’ll find that it includes a transcript of the 59 seconds that it took Cllr. Butt to deal with this item at the 20 June meeting, without any contributions from Council Officers (who were given the chance to speak) or other Cabinet members (who were not).
In my view, the contract which Brent Council proposes to award this week does not meet the requirements of either PCR 2015 or Brent’s Contract Standing Orders, in which case it would be unlawful to award it. We will have to see whether they actually go ahead and award it.
1 Morland Gardens and the community garden in front of it, June 2022.
To me, it would be a grave error, not just legally, but because it would be a big step towards the demolition of a valuable heritage building, and the destruction of the green space in front of it, which is important for both environmental and public health reasons.