The Ombudsman's final decision
Summary: We will not investigate this complaint about public procurement processes because there is not enough evidence of fault to warrant an investigation. There are also other bodies better placed to consider parts of Mr X’s complaint. It would be reasonable to expect Mr X to go to court should he consider the Council has acted unlawfully.
The complaint
Mr X complains about the Council’s handling of a procurement process.
He complains the council repeatedly failed to tender a contract openly, fairly, and lawfully for council services.
Mr X also complains about how the contract was monitored by the Council.
The Ombudsman’s role and powers
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 there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council has an approved list of contractors from which it purchases care services for adults. Each contract amounts to one care package for one service user.
The Public Contracts Regulations 2015 intend to make public procurement more accessible for small businesses. The guidelines apply to all public procurement contracts over a certain financial threshold.
The Council is not tendering out a block contract or a whole service as Mr X believes, rather it commissions individual care packages from an approved list of providers including Mr X’s business. There is therefore no evidence it has denied him the opportunity of business with the Council.
The worth of each contract does not exceed the financial threshold outlined in the Public Contracts Regulations, 2015. On a plain reading the Council does not therefore have to go out to tender because there is no block contract on offer.
If Mr X believes the Council’s arrangements are unlawful, he can approach the Competition and Markets Authority (CMA). The CMA is a government department which ensures a competitive business market.
Mr X also has the right to complain to the Public Procurement Review Service. This is a government body that investigates concerns about public procurement. Unlike the Ombudsman, it can intervene in live procurements.
Interpretation of terms of contracts or procurement law are matters it would be reasonable for Mr X to seek legal advice about and take to court if he thinks the Council has acted unlawfully.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault in how the Council handled the procurement process to warrant an investigation, there are other bodies better placed to consider Mr X’s complaint, and Mr X has the right to seek a remedy in court.
Investigator's decision on behalf of the Ombudsman