Guest post by Philip Grant in a personal capacity.
1 Morland Gardens and the community garden, July 2022.
Two weeks ago, I shared with you an email I’d sent to Brent’s Legal Director, asking her to reconsider her view that the recent contract awarded for the Council’s proposed Morland Gardens redevelopment was lawful. This was in the light of information I’d obtained under an FoI request.
As I think it is important to give the Council a “right of reply” when important points are raised with them and made public, I will ask Martin to publish the full text of the email I received on 25 August. For completeness, I will also include the response I sent on 30 August, and divide the two with an illustration.
If you haven’t already done so, it will probably help to read my earlier guest post (see “link” above). The first email, from Brent, is not “light reading”, but it does give anyone who may be involved in similar disputes with the Council a flavour of what they might expect! Here it is:
‘Dear Mr Grant
Thank you for your email of 18 August that was received whilst I was on leave.
I have now had an opportunity of reviewing your email.
I note that you have helpfully highlighted key parts of your email on which you seek a response from me.
I believe that Brent Council has failed to treat those “economic operators equally and without discrimination” as required by Regulation 18(1).
This statement relates to the process operated by Council Officers in the direct section of a preferred contractor under Schedule 1 of the Network Homes Framework Agreement. Paragraph 3.1 reads that:
‘Direct selection may be used where the Client or any Additional Client considers that it will demonstrate best value for a Project. Subject to paragraph 3.2, the Client or any Additional Client will make a decision on who to directly appoint for a Project based on a best value assessment using a combination of the Contractor’s tender submissions for the Framework and where relevant the Contractor’s:
3.1.1 knowledge and experience of, or relationship to, the site of a Project;
3.1.2 capacity (quantity of work currently instructed) under the Framework;
3.1.3 previous performance under the Framework; and/or
3.1.4 resources available for the particular Project.’
It is clear that under the Network Homes Contractors Framework, “Additional Clients” must carry out an assessment using a combination of the Contractor’s tender submission for the Framework and where relevant the various matters detailed in 3.1.1 – 3.1.4. Officer’s approach to the best value assessment is contained in the Direct Award Evaluation Process Document, particularly in paragraphs 2.3 – 2.6 and paragraph 2.9. There is no requirement under the direct award procedure to contact bidders directly in carrying out such assessment.
Hill Partnerships Ltd. detailed knowledge of the Morland Gardens site was considered significant and as detailed in paragraph 2.6 of the Direct Award Evaluation Process Document:
“It is felt this is a key element of the best value justification as the supplier knows the site and the requirements of the project and would need little time to provide a compliant tender for a call-off from the Network Homes Contractor Framework Lot 3….”
You further state:
I also believe that the answer to question 6 of my FoI request, about Brent Council’s contacts with Hill Partnerships Ltd over a possible contract award under the NHCF, shows that there is a clear breach of Regulation 18(3).
As you indicate, Regulation 18(3) of the Public Contracts Regulations 2015 (PCR 2015) states:
‘For that purpose, competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.’
I do not consider that Officers selection of the Network Homes Contractors Framework was in breach of Regulation 18(3) of the PCR 2015. By its very nature, the use of any framework will unduly favour those economic operators on the framework but the use of frameworks is provided for in the PCR 2015. Indeed the PCR 2015 permits the use of single supplier frameworks. The selection of a framework of itself is therefore not unduly favouring or disadvantaging certain economic operators.
From the Direct Award Evaluation Process Document it would appear that Officers followed the direct award process as provided for in paragraph 3.1 of Schedule 1 of the Network Homes Contractors Framework and as such it is not considered that this process unduly favoured or disadvantaging certain economic operators.
The procurement process, which Cabinet approved on 20 June, was designed “with the intention of unduly favouring” one particular economic operator, Hill Partnerships Ltd.
Cabinet on 20th June 2022 approved the following recommendations:
2.1 Approve the inviting of a tender using a direct award process under the Network Homes Contractor Framework agreement on the basis of the pre-tender considerations set out in paragraph 3.6 of the report.
2.2 Delegate authority to award the contract for the Morland Gardens Redevelopment Design and Build contract following the successful outcome of the tender exercise to the Strategic Director, Regeneration & Environment, in consultation with the Cabinet Member for Finance, Resources & Reform.
For the reasons detailed above, the selection of the Network Homes Contractor Framework agreement of itself is not considered to be unduly favouring or disadvantaging certain economic operators contrary to Regulation 18(3).
Further it was indicated to Cabinet in the report that a contractor would be selected to tender based on a best value assessment. Cabinet in making its decision did not therefore know which organisation would be identified for direct award.
In view of the above, I do not consider that there has been an unlawful contract awarded for the Morland Gardens project.
Director of Legal, HR, Audit and Investigations’
Regulation 18, Public Contracts Regulations 2015. (From the Government website)
This was my response to Debra Norman’s email of 25 August:
This is an open email
Dear Ms Norman,
Thank you for your email of 25 August. Your response was not unexpected, as I know that you will always seek to defend Brent Council and its staff.
I will not prolong this correspondence unnecessarily. You have set out your position, and we will have to agree to disagree.
It is quite clear from the evidence (especially the answer to question 6 of my FoI request) that when Council Officers realised, at the end of May 2022, that they would not be able to award the Morland Gardens contract to Hill Partnerships Ltd under the Notting Hill Genesis Framework, they were looking for a way to award the contract, to that contractor, as quickly as possible by another means.
The Network Homes Contractor Framework provided the means, as it allowed for the direct award of contracts, and Hill Partnerships Ltd were one of the approved contractors under its Lot 3. The Direct Award Evaluation Process was carried out, as required under the Framework, but in such a way (because of the timeframe constraints imposed) that there was only one possible outcome.
That is why I still consider that the procurement process, approved by Cabinet on 20 June, was designed “with the intention of unduly favouring” Hill Partnerships Ltd, so that it breached the Public Contracts Regulations 2015.
Question 6 and Brent’s response, from my Freedom of Information Act request.
You can make up your own minds as to whether or not Brent Council’s 1 Morland Gardens contract was awarded unlawfully!