Mr John Burgess, the very hard working branch secretary of Unison, who has the dubious pleasure of dealing with the One Barnet management, has been very busy and sent the following questions a few days ago to Mr Jeff Lustig who is the monitoring officer for the council (you have a very tough job Mr Lustig - I suppose the £132,480 a year helps - I can't see why you are only paid the same as Craig Cooper the hapless Commercial Director, who is always having to explain to committees what has gone wrong, again, in procurement, Mr Mustard has not seen you having to talk your way embarrassingly out of a tight corner like that)
I am writing to you in your role as the Monitoring Officer for London Borough of Barnet.
Following the receipt of independent advice UNISON is concerned that aspects of the relationship with the company now known as PaybyPhone may create a reputational and possibly legal risk for the Council. UNISON believes that it has a legitimate interest in this because of the impact that a challenge to a Council procurement process could have on its members. Clearly any damage to the reputation of the Council also impinges on our members. Beyond this, many UNISON members are also Barnet residents with a direct interest in the effective administration of the Council.
The following questions are designed to explore these concerns and hopefully assist the Council’s monitoring officer to comply with their own wider public duties with regard to safeguarding the legal integrity of the Council’s procurement practices.
We are of the view that the current tender process could not be safely concluded without consideration of the issues raised and would therefore not envisage any significant difficulty in responding to the questions in a timely manner.
1. Can you confirm that Verrus UK was appointed to the pay by phone contract without formal competition following a competitive trial involving it and one other supplier of pay by phone parking services?
2. What process was followed to select the companies which participated in the trial?
3. How many companies are you aware of that provide pay by phone services in relation to car parking in the UK and/or other European states?
4. Was a contract award Notice published in relation to the trial?
5. Was a contract award Notice published in relation to the contract with Verrus?
6. Is the contract with Verrus within the scope of the European public procurement regime as incorporated into UK law by the Public Contracts Regulations 2006?
7. If so do you consider it to be a Part A or a Part B contract?
8. Can you confirm that the letting of the contract was not compliant with the requirements for Part A or Part B contracts?
9. If the contract is not considered to be caught by the competition regulations can you explain why not?
10. Do you agree that all public contracts, including those out of the formal scope of the regulations, are subject to general treaty obligations around equality of treatment, transparency, proportionality and mutual recognition.
11. Are you satisfied that the way in which the contract was let i.e. without any form of formal competition, was compliant with competition law and/or consistent with the treaty requirements referred to above?
12. Are you satisfied that the Council could be reasonably sure that the deal it struck with Verrus represented Best Value?
13. If the answer to the above is yes could you explain how the Council established that the contract price offered by Verrus was competitive?
14. Can you confirm that the contract with Verrus was extended without competition?
15. Was an extension expressly authorised under the terms of the original contract with Verrus?
16. What is the total expected value of the contract – including the extension?
17. Are you satisfied that the extension is compliant with European and/or domestic legal requirements?
18. Can you confirm that Verrus UK is now owned by PayPoint Plc and has been rebadged as PaybyPhone?
19. Can you confirm that PaybyPhone is a named sub-contractor of NSL, the preferred bidder for the Parking Services Contract?
20. If this is not the case can you describe the relationship between NSL and PaybyPhone?
21. How many other bids named PaybyPhone as a sub-contractor or provider of pay by phone parking services within their bids?
22. Did the composition of any of the bidding consortia change during the tender process?
23. Did any of the bidders propose using a supplier of pay by phone parking other than PaybyPhone?
24. Did the Council do anything that could reasonably be construed as identifying PaybyPhone as a ‘preferred provider’ to bidders during the tender process?
25. If PaybyPhone was involved with more than one bid did the Council identify this as a risk to the integrity of the tender process and if so what steps were taken to mitigate the risk?
26. Was the tender price for the PaybyPhone element the same for each of the bids that PaybyPhone was involved with?
27. Are you satisfied that competition for the pay by phone element of the parking service contract has not been restricted or distorted and that other potential providers have had an opportunity to communicate their offers through the process followed?
28. What relationship will the Council have with PaybyPhone under the NSL contract?
29. How does the Council intend to apply the principle established in the Contract Notice that ‘the Council will require that each consortium member has a joint and several liability’?
30. Are you able to advise the Council that its dealings with Verrus/PaybyPhone create no risk of legitimate legal challenge and do not otherwise pose a reputational risk.
Given that the tender process is expected to be concluded at next week’s Cabinet Resources Meeting (14 December 2011) a response to these questions is required urgently as it will (or should) have a direct bearing on the decision process.
Branch Secretary.Barnet UNISON
Mr Mustard would not be surprised if one of the losing bidders were to lodge an appeal. It is rare for Barnet Council to exactly follow a set of rules, they had to re-issue the parking prices increase for example in the Spring of 2011, so Mr Mustard doubts they will have got a tender correct, they will just bluff it out ( if they can ).