Councils need to keep proper records of contractual decisions

East Devon District Council does like its private, non-note-taking meetings …

“A judge has issued a warning to contractual authorities that might be tempted to minimise the amount of paperwork they keep particularly where they fear that a high profile procurement exercise might be challenged. Helen Prandy reports.

In finding in EnergySolutions EU Limited v Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) that a contracting authority had made “conscious decisions” in relation to sparse record keeping a High Court judge noted that serious consideration appeared to have been given to restricting the keeping of contemporaneous records of evaluation because it was known that these would be disclosable in litigation.

The court took the view that if the evaluation process is performed in accordance with the obligations under the Regulations then they would present no danger to the Authority because they would constitute an ‘audit trail of the decision making’.

He also went on to find that a proposed destruction of notes relating to the evaluation was extremely worrying given the express obligations of transparency on public authorities under the Regulations.

In the absence of adequate contemporaneous documents a court is forced to rely on the recollection of witnesses. Documents may be embarrassing but the memory of witnesses is extremely unreliable and is just as likely to lead to an ‘embarrassing’ revelation. In this most recent case the witness most closely involved with the evaluation admitted on cross examination that he did not accept that inconsistency in evaluation of bids might amount to unequal treatment.

The judge found the almost complete absence of documents relating to a critical dialogue phase of the procurement and a reliance solely on the memory of witnesses to “verge on the incredible”.

The case arose under the 2006 Regulations and there is a requirement now under Regulation 84(8) of the 2015 Regulations to keep “sufficient documentation to justify decisions taken in all stages of the procurement procedure…” and to do so for a period of at least 3 years from the date of the award.

This case is not the first where a deliberate failure to keep documents has created problems for a contracting authority. However tempting it might be it is always far better to have a clear audit trail of reasons for evaluation decisions at every stage, including moderation, and for that audit trail to be in writing.”

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=28164%3Aexplain-yourself&catid=53&Itemid=21

One thought on “Councils need to keep proper records of contractual decisions

  1. This finding should come as no surprise to EDDC.

    In a decision published in January 2004, the Ombudsman found against EDDC in regard to a number of complaints concerning planning matters in Exmouth at Camperdown Terrace. The Ombudsman noted that ‘material relating to the application was misleading and gave no indication that the council was being asked to approve a 6.8 metre high metal boat racking system at the end of their small gardens, not that the racks would be used for the storage of large motor boats which are moved around the site by a gigantic fork lift truck. ‘Consultees were not provided with sufficient information to make informed comments. The Council’s record keeping was very poor and there was a failure to give adequate consideration to the points raised by the consultees and others who commented on the application. The Ombudsman found maladminstration causing injustice and recommended that …..
    Amongst the Ombudsman’s recommendations, (g) undertake a review of the record keeping by planning officers and the delegated decision making arrangemnents to ensure that proper records are kept and delegated decisions are made on the basis of written reports, so that those affected may see how a particular decision has been reached.

    The most striking sentence for me is “Consultees were not provided with sufficient information to make informed comments”. Anyone knowing anything about the Exmouth Masterplan consultation, in regard to Elizabeth Hall v Premier Inn, will appreciate how EDDC said one thing meant meant something quite different, how wanting to see the EH site improved was taken as meaning approval for a Premier Inn. EH is but one of very many examples.

    Anyone who is familiar with EDDC’s answers to FOIs will be all too familiar with EDDC’s failure to keep proper records of decision making.

    The record of this Ombudsman’s finding is no longer available online but I have the 24 page report should anyone want it.

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