25 April 2018

Echoes of MetPro - Procurement failings not cured

Mr Mustard does not like litter louts, injustice or incompetent councils. Sadly he lives in the London Borough of Barnet and thus he is exposed to three things he doesn't like, all of the time.

This will be a long blog so best put the kettle on & then settle down for a read.

Let's go back in time to 2011 when procurement at Barnet Council was a dog's dinner (nothing has changed).

Mrs Angry blogged extensively on the subject of MetPro, here is just one of her delights for the reader

Mr Mustard blogged in a less amusing manner on the procurement action plan, a plan which the wheels have fallen off, probably due to the numerous potholes in Barnet these days.

Let's move on 5 years.

On 8 March 16 the Environment Committee of Barnet Council approved the trial of streetscene enforcement:

On 25 July the 'Contract for services relating to a streetscene enforcement project' commenced:

 The Contract also contained the following clause:

and the following one:

a clause which does not appear to have been used. If it had been exercised, that would give NSL Ltd a valid contract up until 24 October 2017. If not, and no contract extension has been provided to Mr Mustard in response to his Freedom of Information request, then the contract to enforce expired on 24 January 2017.

On 8 November 2016 the Environment Committee received an update on the Streetscene Enforcement activity.

The Environment Committee noted the update. They also agreed to increase fly tipping penalties to £400. Littering penalties remained at £80 although the difference between littering & fly tipping is borderline. By September 16, 570 Fixed Penalty Notices had been issued, 15 in July, 138 in August and 419 in September 16, as staffing numbers increased. 564 of the FPNs were for littering. At that time, 52% of the FPNs had been paid, 85% of them at the discounted rate. 16 cases were going to the Magistrates' Court on 10 November.

On 15 March 2017 a further report went to the Environment Committee.

 which led to the following decision

The committee approved the procurement of a street scene enforcement contract with the view of an income shared model, without setting any parameters limiting the respective shares. That was not their best ever decision.

From the March 17 committee meeting

note the potential extension for evaluation purposes

So, Barnet Council paid all of the costs of setting up the trial. They then let NSL keep all of the penalty income. Genius.

This was profitable for NSL but cost the council four times as much as the profit which NSL made.


The trial is not contracted, at least not legally, until 31 March 17.

On 19 February 18, Mr Mustard asked, under Freedom of information legislation, for the current enforcement contract. He was sent the contract which started on 25 July 16, no contract extension, and was told that the 'full contract is currently out to tender'.

Mr Mustard has checked the Barnet Council procurement portal and did not find an opportunity on offer and the OJEU (The EU procurement portal) and he did not find an opportunity to bid there either. He questions the use of the word 'currently' as meaning, 'we might get round to this soon, especially now that you have shown an interest'.

In Mr Mustard's opinion, and he will defer to specialist local authority & procurement lawyers, in fact to any lawyer at all, no penalty charge issued since 24 January 2017 has been legal.

He questions how NSL Ltd, could legally issue a Fixed Penalty Notice for fly tipping to the business which he is assisting, in February 2018 as they don't have a contract to issue Fixed Penalty Notices?

In addition, the council knew that in September 16 the value of the Fixed Penalty Notices exceeded the value at which the contract should have been advertised under EU rules.

It appears to Mr Mustard that Barnet council have been playing fast & loose with procurement law & internal procedures since September 16 and that every Fixed Penalty Notice for littering, fly tipping & dog fouling etc. issued since 24 January 2017 in the name of Barnet Council, is invalid.

Over to the lawyers.

Yours frugally

Mr Mustard

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