Summary: Mrs X complains that the Council unfairly rejected her tender for an event. There is no evidence of fault in how the Council reached its decision to award the contract to another company. The Council is at fault as it delayed in notifying Mrs X of the outcome of the tender exercise which caused uncertainty to her. The Council has appropriately remedied this injustice by apologising to Mrs X.

The complaint

1. Mrs X complains that the Council unfairly rejected her tender for an event and the officer who evaluated the tenders showed bias towards the successful bidder. Mrs X considers she was wrongly denied the contract for the event.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I have:

• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

7. The Government’s public procurement policy requires all public procurement to be based on value for money. This should be achieved through competition unless there are compelling reasons to the contrary.
8. The Council’s constitution includes its contract procedure rules. These set out how the Council’s processes for procuring services.

What happened

9. The following is a summary of the facts relevant to my consideration of the complaint. It does not include everything that happened.
10. The Council invited tenders for the running of an event. The invitation to tender explained that bids would be evaluated on price and quality of the service. The Council requested that the bidders provide specific information to enable it to evaluate the quality.
11. Mrs X and another company submitted bids for the event. Mrs X’s bid included a price for the event. Mrs X did not provide the information requested on quality. The other company’s bid included a price and the requested information on quality.
12. Officers evaluated the bids. The Council’s records show the other company’s bid scored higher on price and quality that Mrs X’s bid. The Council did not award a score on quality to Mrs X’s bid as she had not provided the required information.
13. The Council notified the successful bidder in writing and invited them to sign the contract. Approximately two months later, the Council notified Mrs X of the outcome.
14. Mrs X made a complaint to the Council about its decision to reject her bid which she considered was due to possible unethical business practices. Mrs X considered the tender had not been advertised on the open market, that she had not been offered a meeting to negotiate a price for the event, the Council delayed in notifying her that her bid had not been successful and not returned her calls. She also complained that an officer had attended a meeting run by another organisation. Mrs X considered the tender exercise was designed to allow the other company to win the tender.
15. The Council considered the complaint through its two stage complaints procedure. It explained:

• The event had been put out to tender in recent years to establish market value.
• All tenders are put out on the Council’s in-tend system where any provider can bid. It also directly invited three suppliers to bid.
• Overall, the tender exercise was in accordance with the Council’s contract procedure rules. However, it had not notified Mrs X of the outcome in a timely manner. The Council apologised for the delay.
• The reasons why an officer had attended an outside meeting.
• There was no bias from the Council. It would have awarded the contract to Mrs X if her bid had been successful.

16. When making her complaint to the Ombudsman, Mrs X said that she did not provide information on the quality of service as an officer told her she did not need to. Mrs X also said the successful company was aware of how much she bid for the tender. Mrs X also considered the tender was not on the open market and designed to allow the successful company to win.
17. In response to my enquiries, the Council said:

• The tender was open to all people who were signed up to its in-tend portal and not restricted to companies in the Council’s area.
• It disputed an officer told Mrs X that she did not need to provide information on quality. Officers recall they told Mrs X that she must complete the quality section. The tender specification set out this requirement and Mrs X has previously provided this information on other tenders.
• It disputes officers disclosed the amount Mrs X bid for the tender. It does not publish unsuccessful bids.
• All bidders should be notified of the outcome of a tender exercise by letter and this letter should explain why their bid was unsuccessful. The Council has reminded officers that its contract procedure rules require notification by letter.

Analysis

18. There is no evidence of fault in how the Council considered Mrs X’s tender submission. The Council’s records show it evaluated the bids in accordance with the evaluation criteria set out in the invitation to tender documents. The evidence shows the successful company submitted a higher bid than Mrs X and completed the quality section. Mrs X did not provide any information on quality so the Council could not award a score.
19. Mrs X has said an officer told her during a telephone conversation that she did not need to complete the quality section. The Council disputes this. I cannot know, even on balance, if the Council did or did not tell Mrs X to complete the quality section as there is no evidence to show what an officer told her. But the invitation to tender clearly explains the information the bidder is required to provide including on quality. It also explains the evaluation criteria. The invitation to tender also explains that the evaluation process will only take account of information provided by the bidder in their tender submission. So, I am satisfied, Mrs X could have known she had to complete the quality section.
20. The Council has acknowledged that it delayed in notifying Mrs X of the outcome of the tender exercise and that it did not notify her in accordance with its contract procedure rules. This is fault which will have caused some uncertainty to Mrs X. The Council apologised for the delay in notifying Mrs X when responding to her complaint. This is a sufficient and proportionate remedy for the uncertainty caused. The Council notified Mrs X of the outcome by email so the failure to notify her by letter does not cause any additional injustice to Mrs X.
21. Mrs X considers the tender process was biased towards the successful company. There is no evidence to show the Council was biased. The tenders were open to anyone registered on the Council’s in-tend system, including people and companies outside the Council’s area. As explained above the tenders were evaluated in accordance with the evaluation criteria.
22. Mrs X has said the Council disclosed to the successful bidder how much she bid for the tender. The Council disputes this. There is no evidence to show the Council disclosed Mrs X’s bid to the company so I cannot say, on balance, that the successful bidder became aware of Mrs X’s bid due to fault by the Council.
23. Mrs X considers an officer’s attendance at an outside organisation’s meeting also shows bias. The Council has explained its reasons for the officer’s attendance. But this is not key to my investigation. The key issue for us is whether there is fault in how the Council evaluated the tenders. As I explain above, I am satisfied the Council evaluated the tenders in accordance with the evaluation criteria.

Fina decision

I have completed my investigation. I do not uphold Mrs X’s complaint that the Council unfairly rejected her tender. I have found the Council was at fault in how it notified her of the decision so I uphold this aspect of her complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman