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Headline

Garden Bridge faces four separate inquiries

Comment

Why let the law get in the way of a good bridge idea? Paul Finch is probably correct in stating many people objecting to the procurement process are really people who simply object to the idea of a bridge. If the business case justifies it, planning consent is awarded and the majority think it's a good idea, then I suppose to many people, continued negativity might now sound a bit tiresome. However I am sure Paul Finch is not suggesting this justifies breaking the law? The story here cannot only be about the public hue and cry about whether or not the bridge is a good idea. I know that I am far from alone in believing the concern about procurement is a story which stands alone. Surely this is something that should be of interest to us all - not just opponents of a bridge across a river in London. These are serious allegations and if correct would amount to a manifest breach of the Public Contract (Amendment) Regulations 2009. The issue here is not just whether or not the initial appointment should have gone to competition, it is about the overriding legal obligation to ensure all bidders were given equal opportunity and a fair and equal assessment of their bids. These concerns are link two separate procurement exercises, the second of which is very high value. Under the Public Contract procurement rules the process must be transparent in order to ensure accountability - an obligation to the bidders but also to the public purse. The reason for this is to give people an opportunity to check the process was fair and equal and in accordance with the rules - and to raise an action should grounds arise. If authorities do not fully advise the unsuccessful bidders how their tenders have been assessed (or how the terms might have changed) then it will be impossible to determine grounds to challenge an award and set in motion any process of accountability. The recent GLA Oversight Committee report into the TfL internal audit is damming to say the least, particularly TfL's lack of disclosure. However it appears to have failed to consider key legal obligations as set out in the Public Contract Regulations. Indeed there appears to have been no consideration at all to the remedies that might apply should a manifest breach be discovered. These remedies are not just about learning lessons and moving on. Since 2009 remedies are no longer just about compensating unsuccessful bidders but also include terminating a contract where an award has already been made, as well as issuing significant fines. It is important to note the intention of this legislation is that remedies are to be proportionate and dissuasive. While the legislation provides some defences to authorities against a contract being set aside where such a decision might be onerous, it is important to note this specifically excludes grounds of cost. These remedies were specifically introduced in 2009 for good reason. These reasons had nothing to do with whether or not the Garden Bridge was a good idea or not. Paul Finch mentions the bean-counter brigade, and dismisses their concerns with a suggestion as to how this project might be more affordable. While this sounds to me like a good idea, this is beside the point. It is important to bear in mind that accountability is not just about numbers and value for money. For those of us who have an interest in fair public contracts procurement accountability is about those responsible for spending public money being able to demonstrate compliance with the law and being held to account if they can not. While there may be significant consequences for the Garden Bridge project should it be discovered these allegations are correct, there would be even bigger implications if authorities were allowed to ignore or bend the rules and act with impunity. While I welcome the NAO's response to Kate Hoey MP, confirming they will investigate the procurement process, as opposed to value for money, my concern is that no-one seems to be thinking about the implications should these allegations be correct.

Posted date

6 July, 2016

Posted time

5:33 pm

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