Barrister and procurement specialist damns TfL’s selection process as new report calls for independent investigation
Transport for London’s (TfL) procurement of the Garden Bridge was ‘legally defective throughout’, a barrister specialising in procurement law has told the Architects’ Journal.
Parishil Patel of 39 Essex Chambers, who has looked at AJ’s long-running investigation, said TfL had shown a ‘widespread disregard’ for both its own rules and the general rules of procurement which was ‘not usual’.
‘There are real issues as to…whether an OJEU notice ought to have been issued [and] whether there was a level playing field in respect of the evaluation of the designs submitted,’ he said.
Patel also criticised the internal audit carried out by TfL and published last September which largely supported the organisation’s procurement approach but revealed TfL had lost or destroyed key documentation including information to support the commercial analysis of the designers’ bids.
‘There are legitimate concerns as to the loss of documentation evidencing the steps and decisions undertaken in the process and that the internal audit of the decisions and processes were properly and fairly conducted,’ he said. ‘The former would make it extremely difficult to justify the decision and process as being within legal boundaries. Recent case law in the procurement field has made it clear how important contemporaneous documentation is to establish the lawfulness of the process.’
TfL’s appointment of Heatherwick Studio for the concept design of the bridge after an invited contest held in February 2013 and also including Marks Barfield and Wilkinson Eyre was followed two months later by a framework contest for the engineering design.
The picture which is painted is one of widespread disregard for the relevant rules
This was won by Arup, which – like Heatherwick Studio - had previously been asked to work on the bridge by the scheme’s originator Joanna Lumley.
During both procurements there was communication with the two firms over their respective rates and Arup - unlike its TfL framework competitors - was given the opportunity to submit a second commercial tender for the £8.4m contract.
Referring to this, Patel said there were concerns as to whether this represented ‘a breach of the fundamental principles of equal treatment and transparency in allowing the successful bidders to change prices after tenders had been submitted.’
Asked whether the procurement of the Garden Bridge was unusual, the barrister added: ‘The picture which is painted is one of widespread disregard for the relevant rules (both procurement and TfL’s standing orders). That is not usual.
‘It is, however, depressingly usual for authorities to fail to record matters contemporaneously and destroy relevant documents.’
A TfL spokesperson said: ’As has been made clear on a number of occasions, an extensive and thorough review of the procurement was undertaken by a separate audit team who found no issues in either procurement with regard to the selection of bidders; the development of the tender and associated contract documentation; the procedure used when awarding the contracts and providing the unsuccessful bidders with an opportunity for feedback; and the procedures used by TfL to manage the projects and contracts following award.
’The audit also concluded that no evidence had been found that would suggest that the final recommendations did not provide value for money from the winning bidders.’
The row over the Garden Bridge has also intensified after the publication of a new in-depth report on the process by procurement reform group Project Compass written by architect Walter Menteth, an expert witness at the first hearing on the matter held by the London Assembly last September.
The new report closely analysed the scoring data in both contests and concluded that there were serious and growing questions as to whether the Garden Bridge project had been undertaken with ‘due diligence, fairly, transparently and legally’.
It called for an independent investigation to be carried out ‘before the public makes any further commitment’ to the Garden Bridge and questioned whether there was any ‘systemic malaise’ in the UK’s system of public procurement.
An email sent by TfL’s managing director of planning, Richard De Cani, to Menteth dated March 1, claimed that the report was incorrect because Menteth had ‘misunderstood the data’ in the original spreadsheet. De Cani carried out the scoring on behalf of TfL in his previous role as director of strategy and policy.
Len Duvall, Labour London Assembly member and chairman of the Oversight Committee:
’This is yet another damning indictment of TfL’s flawed processes. TfL and the Mayor appear to have treated the procurement procedure purely as a hurdle to be surmounted rather than a genuine, open process.
’With a huge question mark hanging over the integrity of the procurement and TfL’s subsequent internal audit, Boris Johnson can no longer nimbly side-step requests for answers on the transparency of this entire process.’
Caroline Pidgeon, Lib Dem candidate for London mayor and member of the London Assembly:
’Hardly a day goes by without a further damning revelation about the selection process that Transport for London followed under the instructions they were handed down by the Mayor of London.
’When the weight of critical evidence is so great it is only right that the project is now finally halted.’