It is one of life's little oddities that when parking meters arrived in Barnet the residents were unhappy. Now when the meters are being taken away there is uproar from residents, visitors and shopkeepers. Mr Mustard, along with other bloggers and equally concerned residents keeps an eye on the council. When the Delegated Powers report ( DPR ) was sneaked out in the holidays that Barnet was going cashless Mr Mustard saw it straightaway. This is it.
DPR 1375 - Cashless Cabinet Member July 2011
Following on from that a tender procedure was carried out and the result was this DPR.
1419 Removal of Pay Display Machines
Note that only one tender price was stood by in the end. Now we need to look at the rules that Barnet Council is meant to operate by. You will find them on this page of the council website and in the boxes below.
Contract Procedure Rules
and these ones as well
Procurement Code of Practice
Take the Contract Procedure Rules first. The contract is for £80,000 so this can be dealt with by Barnet Tender Procedures as opposed to EU ones.
Para 6.4 says the Procurement Code of Practice applies.
Para 6.5 says the tender opportunity should be advertised (this means in the local paper and in a suitable technical journal)Table 6.1 - the column headed £75,000 to £156,442 says Request three(3) or more written competitive quotations but must have minimum 2 returned. Less than 2 bids then repeat competition.
Para 6.14 - If the aggregate cost across all Council services in a financial year for either works, supplies or services of a similar type with a single supplier is expected to exceed £156,442 then an annual or term contract must be established ( RM aren't on the list of existing contracts )
Para 6.15 - The Commercial Director will ensure that expenditure is monitored by category across the Council to ensure these levels are not exceeded. This looks like a get-out for Pam - it's all Craig's fault! Mr Mustard doubts that Craig will agree.
Moving on now to the Code of Practice ( March 2006 edition ).
Para 1.2 - Directors and Heads of Service are responsible for ensuring that their staff conform to the Contract Procedure Rules. What if they don't give a stuff?
Para 6.14 - A public notice must be placed in at least one newspaper circulating in the borough ( have you seen this advert?)
Mr Mustard was unhappy with the way in which the contract for removing parking meters had been awarded which he felt was unconstitutional and so he wrote to the signatory, Ms Pam Wharfe, the Interim Assistant Director of Environment, Planning & Regeneration as follows ( verbatim except that he has substituted Mr Mustard for his real name )
26 October 2011
Dear Ms Wharfe
Part 4 of the council's procedure rules says that for a contract with a value of £75,000 to £156,442
Request three(3) or more written competitive quotations but must have minimum 2 returned. Less than 2 bids returned then repeat competition.
Part 4 of the council's procedure rules says that for a contract with a value of £75,000 to £156,442
Request three(3) or more written competitive quotations but must have minimum 2 returned. Less than 2 bids returned then repeat competition.
Please can you tell me why you have signed DPR 1419 in breach of that very clear rule.
The Procurement Code of Practice says that a supplier should not get more than 25% of its business from the Council. What percentage of the turnover of R M Countryside Services Ltd emanates from Barnet Council?
Yours sincerely
Mr Mustard
9 November 2011
Dear Ms Wharfe
I note that the council has a 10 day target for replying to correspondence. I hoped that having raised such an important point, especially after the Procurement Action Plan was presented to the Audit Committee, that a reply would already have been received to my below email. I look forward to hearing from you very soon.
Part 4 of the council's procedure rules says that for a contract with a value of £75,000 to £156,442
Request three(3) or more written competitive quotations but must have minimum 2 returned. Less than 2 bids returned then repeat competition.
Part 4 of the council's procedure rules says that for a contract with a value of £75,000 to £156,442
Request three(3) or more written competitive quotations but must have minimum 2 returned. Less than 2 bids returned then repeat competition.
Please can you tell me why you have signed DPR 1419 in breach of that very clear rule.
The Procurement Code of Practice says that a supplier should not get more than 25% of its business from the Council. What percentage of the turnover of R M Countryside Services Ltd emanates from Barnet Council?
Yours sincerely
10 November 2011
Dear Mr Mustard,
My apologies for my delay in getting back to you. I have asked for the information you asked me from colleagues. I will chase them for that information.
Pam Wharfe
Interim Director Environment, Planning & Regeneration
London Borough of Barnet
2nd Floor Building 4, North London Business Park, Oakleigh Road South, London N11 1NP
0208 359 7988
www.barnet.gov.uk
17 November 2011
Dear Ms Wharfe
Another week seems to have passed without a response from you.
Yours sincerely
28 November 2011
Dear Ms Wharfe
I am very disappointed that having raised such a serious matter with you on 26 October 11 and then had to remind you on 9 November 11 that I still await a proper, or indeed any, response to my enquiry.
Please note that this is now a complaint.
Yours sincerely
Mr Mustard
29 November 2011
Dear Mr Mustard,
I hope to have a reply with you shortly I am taking further procurement advice.
Pam Wharfe
Interim Director Environment, Planning & Regeneration
London Borough of Barnet
2nd Floor Building 4, North London Business Park, Oakleigh Road South, London N11 1NP
0208 359 7988
www.barnet.gov.uk
29 November 2011
Dear Mr Mustard,
Further to my email earlier this afternoon.
I have reviewed the issues you have raised about this contract. I have thought carefully about the withdrawn tenders and I am content that officers still achieved value for money by using the term contractor who did competively bid for the work. My overriding duty is to secure value for money and the best available option for the council (5-1) and I think that officers had reasonably sought a good price for the work using a competitive process.
On the further issue you have raised about the percentage of its business that RM Countryside Services Ltd have been getting from the council I think this is a valid concern as there is no evidence that officers considered this in making the recommendation to me. However, I am confident that this will be picked up as part of the wider procurement work which the council is conducting.
Taking both issues into account I am not minded to change the decision as I think the particular procurement was sound and the bigger issue is being addressed by other work the council is carrying out.
Pam Wharfe
Interim Director Environment, Planning & Regeneration
London Borough of Barnet
2nd Floor Building 4, North London Business Park, Oakleigh Road South, London N11 1NP
0208 359 7988
www.barnet.gov.uk
29 November 2011
Dear Ms Wharfe
Thank you for your reply. Naturally I do not need to pursue the complaints procedure now that I have heard from you.
Yours sincerely
Mr Mustard
3 December 2011
Dear Ms Wharfe
Thank you for your email of 29 November 2011.
I note that two tenders were withdrawn after the specification was confirmed to the tenderers.
How can they have provided a reliable tender price without having seen the final specification?
Evidently they were not prepared to stand by their prices and that casts doubt upon the validity of the price and withdrawn tenders are of no value as comparators.
This exercise of removing machines wholesale is not one that has been carried out before and so there are no historic prices to compare to.
I note that you rely on paragraph 5.1 but that cannot be read in isolation. The rules are quite clear; there must be two (valid) tenders. There was only one. The notes clearly state that in that situation the procedure must be run again. That was not done.
To proceed to place the work is a breach of the Constitution and I do not believe that you have the authority to ignore the Constitution as if you can there is no point in the council having a Constitution. There are emergency situations where the rules have to be reconsidered but this is not one of those as the machines have stood in place for years and can do so for a month or two longer. Even in emergency situations, the matter has to be placed in a report in front of the Cabinet ( not done in this case ).
You signed the DPR in breach of the rules. According to para 1.2 that is a disciplinary offence and you have a duty to report the matter for consideration to a Senior Manager ( presumably the Chief Executive in your case ) and the Head of Audit and the Head of Governance.
I note that you did not check at the time of signing what proportion of the work of RM Countryside emanates from the council ( it is restricted to 25% to prevent over-reliance which could lead to financial failure and fulfilment problems for the council ) and you refer to the wider procurement work which the council is conducting. If you are referring to the Procurement Controls & Monitoring Action Plan it does not specifically mention the 25% limit and from your reply it would seem that the council does not have any systems in place to monitor this constitutional requirement. If you are referring to some other wider procurement work then I am sure that you, or the Commercial Director, will enlighten me.
I would suggest that the proper course of action is to stop the work, advertise it again (I have not seen the first advertisement in the local paper - was there one ? if so, I would like to see a copy please) and get at least two proper quotes. The machines have been bagged over and are not operational, so no prejudice is caused by this delay ( and given the furore over their removal across the borough from numerous quarters it might be that they are suddenly needed again! ).
Yours sincerely
Mr Mustard
5 December 2011
Dear Mr Mustard,
The work is already underway I understand from the Head of Parking so I am not going to suspend the work. I refer you to my previous answer on the matters of securing value for money for the council.
Pam Wharfe
Interim Director Environment, Planning & Regeneration
London Borough of Barnet
2nd Floor Building 4, North London Business Park, Oakleigh Road South, London N11 1NP
0208 359 7988
www.barnet.gov.uk
5 December 2011
Dear Ms Wharfe
You have repeated the supposed value for money for your actions which I have already discredited. You are in breach of the Constitution. This is what the council website says about the Constitution ( which includes the Contract Procedure Rules ).
"This Constitution sets out how the Council operates, how decisions are made and the procedures which are followed to ensure that these are efficient, transparent and accountable to local people"
You are bound by the Constitution as otherwise there would be little point in its existence. On what grounds are you ignoring the rules and continuing with a contract that has not been lawfully made?
Yours sincerely
Mr Mustard
5 December 2011
Dear Mr Mustard
I have nothing more to add.
I have nothing more to add.
Pam Wharfe
Interim Director Environment, Planning & Regeneration
London Borough of Barnet
2nd Floor Building 4, North London Business Park, Oakleigh Road South, London N11 1NP
0208 359 7988
www.barnet.gov.uk
So there you have it.
A contract issued in defiance of the Constitution and when this is pointed out there is a complete refusal to deal with the issue and only answered after much prompting.
There is little point in Barnet Council having a constitution if an Interim Director is going to simply ignore it.
What sort of example does that set to the rest of the directorate?
Why is she so keen to persist with the contract with RM Countryside ( assuming one has actually been signed ) when it is clearly unconstitutional.
Hopefully Ms Wharfe won't be the Interim Director for much longer with this sort of attitude.
Yours frugally
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