The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s grant of a short-term contract in an emergency. There is not enough evidence of fault in the Council’s actions on this point. Nor will we investigate her complaint about the Council’s tender process. It is reasonable to expect the complainant to use the legal remedy available to them or ask the Public Procurement Review Service to consider her complaint.
The complaint
Mrs X complains the Council awarded a contract to a company without going through the tender process. She also says when it eventually did go through the tender process it was unfair. This is because the incumbent provider knew the prices.
Mrs X wants an independent review of the Council’s contract service to expose corruption.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mrs X.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council confirms a company which provided school transport for children with special educational needs (SEN) ceased providing a service 29 June. None of the children were taken to school on 30 June.
The Council considered the need to transport children with specific needs was an emergency. Regulation 32 of the Public Procurement Regulations says: “32.—(1) In the specific cases and circumstances laid down in this regulation, contracting authorities may award public contracts by a negotiated procedure without prior publication.”
and “(c) insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with.”
The Council says many of the children receiving school transport need cars with specialist equipment such as harnesses and/or wheelchair accessibility. Therefore, it let the contract to a known provider who could meet these needs for the last three weeks of term. It says it contacted known suppliers based on average process of previous tenders and the new supplier was not the first company contacted. The new supplier provided the service for the last three weeks of the school term.
The contract was retendered through the Council’s purchasing system for transport services and a new contract awarded from September 2023 onwards.
We will not investigate Mrs X complaint. The Council has explained the circumstances leading to its decision to award the school transport contract for the last three weeks of term. Under the Public Contract Regulations 2015 this is a decision it is entitled to take.
Mrs X also complains about the way the contract for the new school year was awarded. She is an unsuccessful bidder for this tender who considers the Council did not award the contract fairly. Therefore, she could have used her legal remedy under the Public Procurement Regulation 2015 to challenge the decision at court. I consider it was reasonable for her to do this.
But, even if this legal remedy was not available to Mrs X, or it was not reasonable to expect her to use it, we would still not investigate. There is another body – the Public Procurement Review Service – better placed to consider this complaint. This government body provides a route for businesses to raise concerns about unfair public procurement practice. The service is free and available to any supplier to use. This government body is in the best position to independently investigate how the Council undertook this procurement process.
Final decision
We will not investigate Mrs X’s complaint because there is not enough evidence of fault to justify investigating and there is another body better placed to consider this complaint.
Investigator's decision on behalf of the Ombudsman