1 Morland Gardens – Brent should rethink whether contract is lawful

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,

 

Philip Grant.

 

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.’

 

 

 

1 Morland Gardens – Brent’s new contract is lawful, says Council.

 Guest post by Philip Grant in a personal capacity

“Altamira” and the community garden - a rare traffic free moment at Hillside, July 2022.

 

Last month, Martin published a guest post I had written asking whether or not the new contract Brent proposed to award - for the demolition of the heritage Victorian villa, “Altamira”, at 1 Morland Gardens, and construction of a new college facility and flats – was unlawful.

 

On 18 July I wrote to Brent’s Legal Director, questioning whether the proposed contract complied with the Public Contracts Regulations, 2015 (“PCR 2015”). I also questioned whether the requirement in Brent’s own Contract Standing Orders (“CSOs”), that Cabinet had ‘received and considered a report setting out all the relevant information’, before they authorised the Strategic Director to make the award, had been followed.

 

I received the Legal Director’s response on 1 August. As I believe in openness and transparency in my dealings with the Council on important issues, especially where other residents have shown an interest in the matter (and thank you all for that interest), this is what she wrote:

 

‘I have now had an opportunity of liaising with Officers and will seek to address the issues you raise in your email.

 

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).

 

I note you indicate: 

 

None of this was actually made clear in the Officer Key Decision Report, which the record of the Key Decision confirmed it had relied on (‘the report sets out the reasons for the decision.’).

 

Whilst the Officer Key Decision report does not expressly refer to the particular Regulations referred to above, paragraph 3.5 of the report does indicate:

 

In accordance with the Framework’s rules for a direct award process, the council identified Hill Partnership Ltd as the framework bidder that demonstrated best value for this opportunity.

 

Paragraph 5.2 of the report confirms that participation in the Framework is legally permissible, which involved a review of the Framework to confirm that it complied with the requirements for frameworks set out in the PCR 2015.  Further, paragraph 5.4 confirms that the Council followed the rules for tendering.

 

In the circumstances, it is considered that the report contained sufficient information for the Strategic Director of Regeneration & Environment to make an informed decision on the award of the contract.

 

With regard to the process operated in selecting a contractor to bid, Officers followed the direct award procedure set out in Schedule 1 of the Framework, comparing all contractors on Lot 3 and concluding that Hill Partnerships Ltd. best met the criteria set out in Schedule 1.  All contractor’s qualitative responses to the framework tender were reviewed and all met the council’s requirements. However, 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.

 

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.

 

You state you 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). The Standing Order requires that Cabinet should receive and consider a report setting out all relevant information necessary to enable it to give such approval(s) as it considers necessary. I have responded to the points raised in the attachment to your email below.

 

You are concerned that Members of the Cabinet had from 4.30pm on Thursday 16 June and 10am on Monday 20 June when the Cabinet meeting began to consider the report on this particular issue.  None of the members of Cabinet expressed any concern as to the time they had had to consider the matter or raised any questions which indicated they had not understood its content.  There is no reason to think they would not have raised queries if they had had any. I have no reason to doubt that they diligently considered the content of the report prior to the meeting at which the decision was taken and were not reliant on comments by the Leader in order to understand what they were being asked to agree.  It was perfectly in order for the Leader to present the report. 

 

You are correct that there is an inconsistency between the legal implications section of the report and the recommendations in terms of the Cabinet member with whom consultation would take place.  However, the content of the recommendation itself clearly takes precedence and is what Cabinet members agreed to in making their decision. I have no doubt cabinet members were perfectly clear as to the cabinet member with whom they were agreeing the Strategic Director would consult.

 

The Protocol to which the Scrutiny Committee is required to have regard required it to come to one of the following conclusions:

 

§  That the matter should be referred back to the decision maker for reconsideration with reasons for its request and what the committee wants the decision maker to do.

 

§    That it does not object to the decision and the decision can be implemented. 

 

In this case, the committee determined that it did not object to the decision and the decision could therefore be implemented. 

 

The essence of the call in was a concern about the timing of the award of the contract and as to any inclusion of pre-construction demolition of building in stage 1 of the contract.  On the basis of discussion at the meeting, the committee decided it did not object to the award at this time of a contract for the Morland Gardens development.  The issue of which framework would be used for that award was not a part of the call in nor of the decision made by the committee. 

 

I do not consider there is any reason for supposing member of the Cabinet were confused as to the decision that the Scrutiny Committee had considered at its meeting.  It is perfectly clear in the report that Cabinet is being asked to agree a new process for awarding the contract as soon as possible.

 

You are concerned that the previous mini competition was too long ago to provide a reasonable price comparison and that the price may have significantly increased.  This is not the case.  With a direct award under the Network framework, the contractor is required to submit a project specific price, with overhead and profit figures not exceeding those they tendered for the framework.  The price that Hill Partnerships Ltd submitted complies with these requirements and was a similar price to that submitted during the November 2021 tender.

 

Paragraph 5.2 of the report refers to Standing Orders and summarises the relevant content of Standing Order 86 in respect of Frameworks.  I do not consider not including the number of the Standing Order has any implications for the report or the decision made in relation to it. 

 

Having considered the various points you have raised I do not consider there is any reason why the award should not now proceed.’

 

Cabinet authorising the award of a new contract on 20 June, in 59 seconds. (From Brent’s webcast)

 

The Legal Director has stated, about the Cabinet decision, ‘I have no reason to doubt that they diligently considered the content of the report prior to the meeting at which the decision was taken.’ My reply was: ‘I have to admit to some scepticism over your response in connection with the Cabinet's consideration of the Report on the Authority to Award, both before and at the meeting on 20 June.’ I’m sure there will be others who share my scepticism!

 

I am also sceptical about the claim that Council Officers considered all of the contractors under Lot 3 of the Network Homes Contractor Framework (“NHCF”), before deciding that Hill Partnerships Ltd was the one who best met the criteria for the direct award of the contract. The bid they made in response to the invitation under the NHCF just happened to be the same* as the one they’d made under a different framework, which Brent would have accepted if they had not run out of time to do so!

 

If Council Officers did do all that consideration and review of the other contractors, there should be documentary evidence, so I have requested that “audit trail” under Freedom of Information. 

 

“Altamira” from the community garden – the corner of Brent’s proposed new 9-storey building would be where the Sundisc sculpture (a Harlesden City Challenge public artwork) now stands.

 

My FoI request will not stop the award of the contract, which may have been done already. The Legal Director’s reply refers to ‘the project beginning in August 2022’, but can it really begin straight away, especially “on site”? 

 

The former Brent Start college building, including the Victorian villa, is now being used as a home by “Live-in Guardians” (I’ve told Brent’s Capital Projects team that I am quite happy with that, as it should protect the heritage asset from vandals!). And the land in front of 1 Morland Gardens, which Brent’s plans need, so that they can build out over it, is still the subject of objections to the Council’s proposed Stopping-up Order. It is likely to be Spring 2023, at the earliest, before those objections are resolved, hopefully by an independent Inspector, and the decision could go against the Council.

 

Philip Grant.

 

* Hill Partnerships Ltd November 2022 tender bid was £37,933,491. Their July 2023 bid is £37,933,561. Perhaps the extra £70 is an “admin. fee” for re-submitting the same paperwork?

1 Morland Gardens – Brent’s new contract, clever or unlawful?

 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.

 

Philip Grant.

 

1 Morland Gardens – yet another twist!

Guest post by Philip Grant in a personal capacity

 

“Altamira”, 1 Morland Gardens, with community garden in the foreground. (Photo by Irina Porter)

 

When Martin reported, just a week ago, that a call-in meeting of Brent’s Resources and Public Realm Scrutiny Committee had given the go-ahead for the contract for the Council’s Morland Gardens redevelopment scheme to be awarded, you might have thought that the fate of the heritage Victorian villa there was sealed.

 

The only thing that could scupper Brent’s controversial plans to demolish the locally-listed building might be the objections to the proposed Stopping-up Order for an area of highway between the restored garden wall of the villa and the community garden. Council Officers, with the encouragement of several Cabinet members, had decided in early 2019 that they could use this extra piece of Council-owned land, in order to build more homes as part of the development. They had failed to consider the consequences of that decision, or to take the necessary action to obtain the Order, which led to the call-in.

 

The “award-winning” building which Brent wants to replace “Altamira” with.

 

Alan Lunt, Brent’s Strategic Director (Regeneration and Environment), won his right to award the two-stage Design & Build Contract for Morland Gardens to Hill Partnerships Ltd on the evening of Thursday 9 June. But when the agenda for the Cabinet meeting on 20 June was published the following day, this was item 12:

 

‘12. Authority to Tender for the Design & Build Contract at 1 Morland Gardens, Stonebridge.

Following on from a call-in relating to the original contract award, this report requests approval to invite tenders by way of a direct award under the Network Homes Contractor Framework and approve the pre tender considerations as required by Contract Standing Orders 88 and 89.’

 

The Report for this item was “to follow”, and that was not published on the Council’s website until the afternoon of Thursday 16 June. What had gone wrong? This is the explanation given at para. 3.3 of the Report:

 

‘The council also sought to procure a contractor for the scheme in May 2021 and May 2022 but both tender opportunities were unsuccessful. The first tender opportunity did not elicit any bids. The second tender opportunity elicited three bids and the council recommended the award of the contract as detailed in the Key Officer Decision report of 20 May 2022. This decision was subject to “call in”, during which period the Framework under which the contract was awarded, expired and so the council is required to procure a contractor again under a further procurement process.’

 

It appears that Mr Lunt may be trying to blame the call-in for the missed opportunity to award a contract for the scheme, and the need for a third attempt ‘to procure a contractor’. In fact, he was given a second chance to find a contractor in August 2021, and the three bids under that procurement process were received in November 2021. The fact that Brent took until 20 May 2022 to decide which of the three contractors they wished to award the contract to is no fault of the councillors who called-in his decision. They did so because of the risk of awarding a contract for a project which involves land that Brent does not have the legal right to build on!

 

Brent’s Cabinet are being asked to make a big decision at short notice. Not only that, they are being asked to approve the finding and appointing of a new contractor in a very rushed process, set out in this table from the Report:

 

Extract from table at para. 3.6 of Cabinet Report.

 

The Report says that ‘the estimated contract value of the procurement is £38m.’ The bid the Strategic Director wanted to accept in May was £37,933,491, but that had been made in November 2021. There was another item on the Cabinet agenda (Watling Gardens) where the Report was also not available, and a Council Officer has explained to me the reason for that:

 

‘Item 16 was not available on that date because the need for the report has arisen unexpectedly because of the escalation in the costs of the project due to the current inflation situation.  You may recall the challenges this situation is causing for the council were mentioned by the Chief Executive at the recent call-in meeting.’

 

That “escalation in costs” will surely affect the amount that any contractor submitting a tender for the Morland Gardens project is willing to offer. And if they offer an amount within the Council’s “budget” for this scheme, what corners will they cut in order to build it and still make a profit? This could easily become another Granville New Homes, where what was on paper an award-winning design was so poorly built, in order to keep “within budget”, that it is now costing more than the original contract to remedy the defects.

 

Brent Council has made so many mistakes and bad decisions over 1 Morland Gardens, which is why they are in the mess they are now over it. Will they plough on, digging a deeper hole for themselves, or will they finally see sense and go “back to the drawing board”?

Philip Grant