Letter to Len Duvall, Chair – GLA Oversight Committee

Dear Len Duvall

Re: Reporting oversight on the Garden Bridge

Regarding the GLA Oversight Committee meeting of 11 October 2017 on the Garden Bridge we are writing to ask your committee to consider moving to clarify a relevant issue that is raised.

This relates to how design propositions that benefit the public estate can be brought forward by London’s design community in future. We believe this will release enormous untapped potential to identify opportunities and deliver growth.

The endeavours of UK design professionals to support a project from inception are often ignored, and the knowledge lost as any scheme adopted for public implementation will then be put out to competitive tender. There is now therefore little motivation for design professionals to initiate and nurture projects from inception as almost inevitably the original designers will be preclude as the established competitive processes are highly restrictive.

This effectively locks out many of those who would be particularly well placed to support ‘bottom up’ endeavours, whether for example through the engagement of design professionals with their communities or by creating imaginative and valuable design ideas contributing to the city’s wider needs, vitality and wellbeing.

The Public Contract Regulations (PCR) 2015 provide seven procurement routes but the ‘Restricted Procedure’ predominates in the UK, while others are hardly ever used. Improved clarity could open the opportunity for procurement officers to select more appropriate procedures. Because it aims to secure design copyright (PCR 2015, Reg. 32.2[b]1) use of the ‘Negotiated procedure without prior publication’ offers significant potential for clients to access the ideas and knowledge of those involved in ‘bottom up’ initiatives.

The regulation (32.2[b]) however is caveated ambiguously, in the following terms:

“when no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement”

An absence of guidance in the UK for procurement lawyers, specialists and public authorities’ means they are unable to justify using this procurement route. This is not the case in much of Europe where it is more widely used, as clarity on this regulation often exists.

We believe that this could be resolved and this alternative route opened up if clarification of clause 32.2[b] were provided to enable clients to benefit from the knowledge and initiative of an existing design team. What is needed is a process by which a project can be transparently and clearly evidenced as delivering value, probity, fairness and quality in the best interests of the public.

Subject to upholding all these other procurement principles, and to unlock opportunity through this procedural route we would therefore recommend regulation (32.2[b]) be clarified with the addition of a peer review process, to be used only where relevant, that would allow each case to be tested on its merits.

Our suggested wording for the clarification to regulation 32.2(b) is as follows:

“In the built environment this may be evidenced by impartial independent peer review, comprising a minimum of three qualified reviewers, with no conflicts of interest and having at least ten years’ experience of holding a specific qualification directly related to the subject being reviewed.”

We propose that consideration might be given to adopting this or a similar clarification through governance, or by standing order across the TfL GLA family, or by national provision through a Procurement Policy Note (PPN). This would allow us all to benefit from the positive and creative endeavours of those developing built environment ideas for public good.

London has many challenges and it is clear that we need to find a way through this issue that will encourage design professionals to come forward with ideas and to engage with communities in order to meet them, and for client bodies to know they can access those ideas and benefit from the knowledge and work already carried out.

We trust that your committee and the GLA will give due consideration to the matters raised above.

Yours sincerely

  • Andy McConachie, associate partner Simpson Haugh Architects
  • Angela Brady OBE. PDSA PPRIBA, director Brady Mallalieu Architects Ltd
  • Carl Turner RIBA, Carl Turner Architects
  • David Mikhail, Mikhail Riches architects
  • Deborah Nagan, Nagan Johnson Architects
  • Ian Ritchie CBE RA, Ian Ritchie Architects
  • James McCosh RIBA, van Heyningen & Hayward Architects
  • Jonathon McDowell, director Matter Architecture Ltd
  • Luke Tozer, Pitman Tozer Architects Ltd
  • Meryl Towney RIBA, van Heyningen & Hayward Architects
  • Mike Davis CBE RIBA FRSA FRGS FICPD, founding partner of the Richard Rogers Partnership
  • Robert Sakula, Ash Sakula Architects
  • Roland Karthaus, director Matter Architecture Ltd
  • Russell Curtis, director RCKa Architects
  • Sarah Wigglesworth RDI MBE RIBA, Sarah Wigglesworth Architects
  • Simon Astridge, Simon Astridge Architects
  • Tomas Stokke RIBA, director Haptic Architects
  • Walter Menteth RIBA, Walter Menteth Architects

1The Public Contract Regulations 2015 – Regulation 32

Use of the negotiated procedure without prior publication
General grounds

(2) The negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service contracts in any of the following cases:—

(a) where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission where it so requests;

(b) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons:—

(i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance,

(ii) competition is absent for technical reasons,

(iii) the protection of exclusive rights, including intellectual property rights,

but only, in the case of paragraphs (ii) and (iii), where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;

Call for ‘bottom up’ enablement by regulatory clarity

Following investigations into London’s Garden Bridge nineteen architects have written to the Chair of the GLA Oversight Committee, calling for better ‘bottom up’ enablement of public services through regulatory clarity.

“There is now little motivation for design professionals to initiate and nurture projects from inception as almost invariably the original designers will be preclude as the established competition processes are highly restrictive.

This effectively ‘locks out’ many of those who would be particularly well placed to support ‘bottom up’ endeavours, whether for example through the engagement of design professionals with their communities or by creating imaginative and valuable design ideas contributing to the city’s wider needs, vitality and wellbeing.”

The proposals tabled would “..allow all to benefit from the positive and creative endeavours of those developing built environment ideas for public good.

“London has many challenges and it is clear that we need to find a way that will encourage design professionals to come forward with ideas and to engage with communities in order to meet these challenges, and for client bodies to know they can access those ideas and benefit from the knowledge and work already carried out.”

Continue reading “Call for ‘bottom up’ enablement by regulatory clarity”

Public Interest Challenge & Garden Bridge

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.

  1. 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.

Kind regards

Walter Menteth

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!”

 

Procurement reforms at TfL after Hodge Review

After the Thames Garden Bridge debacle and in response to the Hodge Review, on 17 July TfL Board were invited to approve a series of recommendations for governance changes to increase oversight and effectiveness of their procurement activities. This follows on from a number of other previously implemented changes also made public HERE.  Whilst this represents progress following the Project Compass report into the ‘Thames Garden Bridge Procurement Issues’ (feb 2016) we will continue to work forward on the need for further reform of procurement governance, practices, procedures and opportunities, particularly for design professionals, both across London and elsewhere.

Good riddance to the Garden Bridge

Good riddance to the Garden Bridge: an eye-watering waste of public funds

Walter Menteth article originally published 11 May, 2017 in

 

 

With one swift blow, London Mayor Sadiq Khan confounded plans to construct a leafy walkway above the River Thames. By refusing to guarantee further public funds, the mayor leaves the Garden Bridge project with a funding gap of some £70m, and a countdown of just eight months until planning permission expires.

Continue reading “Good riddance to the Garden Bridge”

Flying by the seat of their pants

 

(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. Continue reading “Flying by the seat of their pants”

The crescendo of Thames Garden Bridge opposition call for an independent inquiry

Following Project Compass’s detailed submission of critical evidence into the procurement of design services for the Thames Garden Bridge to the GLA Oversight Committee 17/9/15, and the subsequent Project Compass Thames Garden Bridge Procurement Report 02/16 examining both procurements of design and project management/engineering services, a significant number of other further fundamental concerns have been brought to light.

Calls have been growing for the project to be subject to an independent inquiry, with the RIBA now joining the chorus. Five inquiries: by The Charity Commission, The National Audit Office, the GLA Oversight Committee, the Mayors Office, and TfL’s external auditors have or are now interrogating separate issues. Continue reading “The crescendo of Thames Garden Bridge opposition call for an independent inquiry”

Muddy Waters “Jobs for the boys”

London’s proposed Thames Garden Bridge

(Walter Menteth article originally appeared in January 31, 2016 on LinkedIn pulse)

From all that is now known about the Thames Garden Bridge it has become increasingly apparent that this project represents a turning point.  Its entire procurement is characterised by corruption that is tainted by nepotism and collusion.

Continue reading “Muddy Waters “Jobs for the boys””