Summary: We will not investigate this complaint about the public procurement process because there is not enough evidence of fault to warrant an investigation. Also, it is reasonable to expect the complainants to go to court if they consider the Council has acted unlawfully.

The complaint

1. Mrs X and Mrs Y complain about the way the Council dealt with their company bid as part of a procurement process. They complain the Council has failed to run a fair tender process. Mrs X and Mrs Y want the Council to run the process fairly and to award their company a contract to provide services.

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The Ombudsman’s role and powers

2. 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
• we cannot achieve the outcome someone wants.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by Mrs X, Mrs Y, and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council carried out a procurement exercise in 2023 for a contract to provide services. Mrs X and Mrs Y tendered for the contract but were unsuccessful. They say other companies were unsuccessful in tendering at the same stage as theirs, but the Council has now awarded them contracts.
7. The Council has responded to Mrs X and Mrs Y’s challenges against its decision. Officers have also met with them to discuss their concerns. The Council has explained how the moderation panel considered the bid from Mrs X and Mrs Y’s company. And why this had not achieved a high enough score to result in a successful bid.
8. Mrs X and Mrs Y disagree with the Council’s decision. However, it is not our role to interpret contract terms or procurement law. It is reasonable to expect them to seek legal advice and ask the courts or the Public Procurement Review Service (if applicable) to consider if they believe the Council has acted unlawfully.

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Final decision

9. We will not investigate Mrs X & Mrs Y’s complaint because:
• there is not enough evidence of fault in how the Council handled the procurement process to warrant an investigation
• it is reasonable to expect them to seek legal advice and ask the courts to consider their concerns; and
• we cannot require the Council to provide Mrs X and Mrs Y with a contract.

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Investigator's decision on behalf of the Ombudsman