Guesr Post by Philip Grant in a personal capacity
1 Morland Gardens, June 2022.
Two weeks ago, in a guest post giving Brent Council’s response to me stating that the award of the latest contract for their Morland Gardens project was lawful, I mentioned that I had submitted a Freedom of Information Act request. This was to obtain what should have been the supporting evidence for the views set out by Brent’s Legal Director.
For those of you interested in the way that Brent Council carries out its business on our behalf, and in the continuing saga of the Brent’s plans to demolish the locally listed Italianate Victorian villa, “Altamira” (above), this is the latest position.
I have received a full response to my FoI request from Brent Council, and will ask Martin to attach a copy of this at the end of this article. The rest of this post is the full text of an open email which I sent to Brent’s Legal Director on 18 August.
This is an open email
Dear Ms Norman,
Whether the 14 July 2022 decision to award the Morland Gardens contract breached the Public Contracts Regulations 2015 (“PCR 2015”).
In your reply of 1 August, to my email on this subject of 18 July, you wrote:
‘I would confirm that reference in my previous email to Regulation 33(8) of the Public Contracts Regulations 2015 (PCR 2015) was indeed to Regulation 33(8)(a) and that when inviting a single contractor to bid from the Network Homes Contractor Framework (Framework), the Council complied with its obligations under Part 2 of the PCR 2015 in accordance with Regulation 37(6)(c).’
Later in that email, you replied to my suggestion that the award had not complied with Regulation 18 of PCR 2015 (see below), writing:
‘As it is considered that the direct award procedure set out in Schedule 1 of the Framework was used appropriately, it is not accepted that the award has been made with the intention of unduly favouring one economic operator.’
I have highlighted parts of the quoted replies above, and would ask you to reconsider them, in the light of the following information.
My response to your reply, also on 1 August, included a Freedom of Information Act request. I have now received the information requested, and attach a pdf copy of the Brent Council response, and the Direct Award Evaluation Process (“DAEP”) document which was supplied with it.
The DAEP document makes clear that there were ten contractors within Lot 3 of the Network Homes Contractor Framework (“NHCF”), all of whom would have met the Council’s requirements for being invited to tender for the contract, if it had been a competitive tender process.
Of those ten contractors, seven were also contractors under the Notting Hill Genesis Framework (“NHGF”), which had been used for the previous two attempts to award a contract for the Morland Gardens Development. Those seven had been invited to tender for the previous contracts. But there were three contractors within Lot 3 of the NHCF who had never been invited to tender for this project.
In your email of 1 August you wrote that:
‘the other contractors on the framework did not have the resources available to meet the timescales the council required in order to meet the GLA grant funding requirement to be in contract and the project beginning in August 2022 and did not have the same level of knowledge and experience of, or relationship to the project site.’
I would refer you to question 4 of my FoI request, about contacts with the other contractors within Lot 3 of the NHCF, to find out whether they had the resources to meet the Council’s timescale. This was the answer:
‘As described in the Direct Award Evaluation Process attachment as part of the response to query no.3, no other contractors on the framework were contacted.’
The relevant sentence in the DAEP document is:
‘It should be noted that the other 9 suppliers on the framework were not checked for capacity (3.1.2), previous performance (3.1.3) and resource availability (3.1.4).’
Even if it were assumed that the other contractors on the NHGF, who had been given the opportunity to bid in the previous Morland Gardens tender processes, in 2020 and 2021, could be discounted, by failing to contact the other three NHCF Lot 3 contractors about whether they would be interested in bidding for the latest tender process, I believe that Brent Council has failed to treat those ‘economic operators equally and without discrimination’, as required by Regulation 18 (1).
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 there was a clear breach of Regulation 18(3). This was the answer:
‘The Council contacted Hill Partnerships Ltd via phone call during the week of 30 May 2022. They confirmed that they had available resources to start in August and that they continued to be interested in this scheme and would submit a bid should the Council issue a further invitation to tender. They confirmed the frameworks they were on so the Council could undertake its due diligence on the frameworks as a potential route to market.’
This confirms that Brent Council, having discovered that it had run out of time to award a Morland Gardens contract to Hill Partnerships Ltd under the second NHGF tender process, set out to find a way to award a contract to them under a different framework. Having found out from this contractor which frameworks they were approved for, the Council’s ‘due diligence’ was to find a framework which allowed them to make a direct award of the new Morland Gardens contract to Hill Partnerships Ltd, and to make it quickly.
The procurement process, which Cabinet approved on 20 June, was designed ‘with the intention of unduly favouring’ one particular economic operator, Hill Partnerships Ltd.
I look forward to receiving your response to this open email, and to learning how Brent Council intends to deal with what appears to be an unlawful contract awarded for its Morland Gardens project. Best wishes,
Regulation 18 of PCR 2015:
‘Principles of procurement
18. (1) Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
(2) The design of the procurement shall not be made with the intention of excluding it from the scope of this Part or of artificially narrowing competition.
(3) 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.’