(Walter Menteth article originally published September 13, 2016 on LinkedIn Pulse)
There have been significant recent revelations about the Thames Garden Bridge in London and the Garden Bridge Trusts structure and funding.
These reveal the Trusts near exclusive reliance on public funding, which reputedly amounts to £30m from Transport for London, £30m from central government, along with the costs and liabilities of indemnifying the project along with the contracts the Trust has entered into.
There have also been revelations about the number of significant and expensive contracts the Trust have now let on their own account, at exceptionally high risk. These have onerous obligations and damaging break clauses. These have been let prior to the project having received full authority and clearance to proceed with construction.
This commitment of public funding by an arm’s length organisation appears recklessly irresponsible.
Moreover the letting of these contracts appears to have been neither open nor transparent and would not appear to accord with any of the following: UK International Treaty obligations (TFEU), the European Directives, the Public Contract Regulations or TfL Policy. TfL have a role in this because they also provide project management expertise (TfL Finance Committee. 18 July 2013 Report p.4 Item 4.20, 4.21, 4.2 appears the first cited affirmation)
For the purpose of the public contract regulations in England any organisation which is funded in the most part by a public organisation, or any organisation under the supervisory authority of a public organisation, is deemed ‘a body covered by public law’ . All such public law bodies are required to comply with the regulatory requirements of the Public Contract Regulations when inviting and awarding contracts.
But there doesn’t appear to have been any due legal or regulatory process or governance of the public funding in this case.
There is a duty upon the Thames Garden Bridge Trust to comply with these regulations, and upon TfL as the public agency granting and managing the public contribution, by ensuring the appropriate supervision of public expenditure.
This project however is flying by the seat of its pants!
Having expended public money now to the reputed tune of £42m and with nothing to show, the Garden Bridge Trust has done so with complete disregard and entirely on a will and a wisp, to fulfilling their own vain expectations. Their own expectations but no one else’s!
In UK public life it is difficult to think of what case has ever been considered with such scandalous public disdain.
This is what the Public Contract Regulations 2015 state.
“bodies governed by public law” means bodies that have all of the following characteristics:—
(a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) they have legal personality; and
(c) they have any of the following characteristics:—
(i) they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law;
(ii) they are subject to management supervision by those authorities or bodies; or
(iii) they have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law;
The previous regulations and directives are align with this definition to all material purpose.
The BPF provide a very clear and welcome visualisation about how a public authority should engage with arms length organisations or private bodies on procurement HERE.