Public Interest Challenge & Garden Bridge Oversight. Transcribed below is a letter submitted by Project Compass to the GLA Oversight Committee calling upon them to consider better regulatory policing by means of a Public Interest Challenge for framework procurements, in specified circumstances.
“Dear Len Duvall,
Further to the recent GLA Oversight Committee mtg. of 11 October ‘17 where you called for exploration of future procedural improvements in TfL and the authorities procurement, on behalf of Project Compass CIC I am writing enclosing a proposal for your committees consideration and recommendations forward, along with a supplementary informative.
- Under the Public Contract Regulations (PCR) 2015 challenge of unprofessional procurement practice is available to those bidding who are defined within strict limitations as ‘economic operators’ and such challenge may only be within a constrained timescale.
For commercial reasons this can be particularly problematic for private firms, especially when they may seek further work from the awarding authority and that authority has a large and/or dominant market position. In effect they are captured. Pragmatically this conflicts commercial firms, and can in the case of the Garden Bridge procurement and other case study evidence we have researched lead to unprofessional procurement outcomes lacking transparency.
We would propose in future, within the standing orders and governance of a TfL or London wide remit, or by the national provision of a Procurement Policy Note (PPN) or in the longer term by reform of PCR 2015, that consideration might be given to the provision of a Public Interest Challenge, when poor procurement practices become publically apparent.
In this way a higher bar of accountability could contribute towards improving transparency and further professionalising practices to provide better, more effective and efficient procurement. This could address those aspects of the apparent conflicts in the existing procurement regulations.
Our thoughts on how the principle of allowing a public interest challenge might be embodied are set out below……(Letter Items 2 & 3 redacted here)
…. I trust the enclose maybe of value in informing best practice forward.
PUBLIC INTEREST CHALLENGE PROPOSAL – NOTES:
It is the definition below which largely appear to preclude a ‘Public Interest Challenge’
PCR 2015 Clause 2(1) Definitions:
“economic operator” means any person or public entity or group of such persons and entities, including any temporary association of undertakings, which offers the execution of works or a work, the supply of products or the provision of services on the market;
PCR 2015 Chapter 6:
Clauses 88 (2)
In regulations 89 and 90, “economic operator” has its usual meaning (in accordance with regulation 2(1)), but in the other provisions of this Part “economic operator” has the narrower meaning of an economic operator (as defined by regulation 2(1)) to which a duty is owed in accordance with regulation 89 or 90
Clause descriptions/definitions however might possibly be clarified by means of a Procurement Policy Note, or within the local GLA or TfL remit by governance/standing orders or ordinances are set out below:
Clause 89(2), 91 (1) The definition of ‘an economic operator’
Proposal: ‘an economic operator which, in consequence suffers or risks suffering, loss or damage’ shall mean the public or their representatives.
Clause 92 (4) & (5) Discretionary extension of the time limit for actioning proceedings.
Proposal: The court shall be required to consider the timescale in which the public or their representatives might reasonably have become conscionably aware.
Clause 93 (5) (b) a summary of the relevant reasons
Proposal: ‘relevant reasons’ shall mean reasons that are evidentially substantial and relevant to the notified award criteria assessed in accordance with these regulations.
Clause 94(1)to(5), 98 (2)(c), 99(c), 102 (6) The definition of ‘any economic operator’
Proposal: The definition shall have the same meaning as that proposed in clause 91(1) (above)
The key principle being to allow the possibility of a public interest challenge!”