15 December 2021
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I walked out of the Hughenden Parish Council meeting on 14 December. As that left only 4 councillors present, the meeting was inquorate and decisions could not be taken.
I walked out because I was put in an impossible position – a position no councillor should tolerate.
As a councillor, I have to take corporate responsibility for the Council’s decisions.
And yet I was at a meeting where I had to take a decision on a recommendation which disregarded the conclusions of the internal auditor; which was probably unlawful and put the Council at risk of legal challenge; and which involved substantial sums of public money.
Despite my repeated requests, I was provided with absolutely no information about the recommendation and no professional advice.
And I had every expectation that other councillors would vote for the recommendation.
The only way I could see to prevent myself - and the Council - taking such an ill-informed and possibly unlawful decision was to walk away and render the Council inquorate.
I hope I will not be put in this position again.
I also hope this is my last blog before Christmas. So, just in case, I wish you all good health and happiness over the holiday period and a prosperous New Year.
The background
In November, the Clerk put invitations to tender for four maintenance contracts for 2022/2025 on the website of Hughenden Parish Council (see my blog of 16 November).
Council had not approved this and had had no opportunity to review the tender documents nor the procurement process. I specifically asked the Clerk if the documents should also be placed on the government’s public procurement website.
I also said Council needed to evaluate the cost effectiveness of contracting out these services as against doing the work in house.
Neither the Clerk or other councillors replied.
I tried to get the matter discussed at the Council meeting on 9 November but the Clerk declined to put my motion on the agenda and I had no support from other councillors.
On the 10 November, the internal auditor issued his report to Council and assessed the Council as not compliant with the Public Procurement Regulations.
He observed that the maintenance contracts were likely to exceed the £25,000 limit as set out in the Public Contract Regulations but Council had not posted these on the Contracts Finder website.
He recommended the Council “to review the tender process and confirm compliance with the Public Contract Regulations. In future the Council to ensure that it complies with the requirements of the Regulations."
The tenders were then removed from the Council's website.
Now I assumed that the Council would implement the internal auditor’s recommendation for a review of compliance. I hoped this would also be an opportunity to evaluate the contracts’ cost effectiveness.
So, on 22 November, well in advance of future Council meetings, I asked the Clerk for some basic information:-
- How much had each of the four maintenance contracts cost, say over the past three years?
- Exactly what outputs had the Council got for that expenditure?
- What had worked well with these contracts? And what had been the problems?
- Did Council think it needed different outputs e.g. less or more grass cutting? Did it need to specify deadlines for work or specific time frames?
- What were the arguments for keeping the contracts separate or combining them into one contract?
- How could the Council get better value for money in contracting out the work to obtain the outputs it needed? and
- Were there different options which could give better value for money? This might mean carrying out all or some of the work in house.
I got no response.
On 9 December, the agenda for the Full Council meeting on 14 December came out. Item 7 says:
“Service Contract Extensions
To consider the recommendation by the Services Committee extending the existing Hedge and Field, Grounds, Garden of Rest and General Service contracts by 12 months to March 2023 and to instruct the Clerk issue such invitations.”
No other information was provided to councillors. You can check this for yourself as the bundle of papers provided to councillors is at 2021-12-14-Short-Bundle-1.pdf (hughenden-pc.gov.uk)
I looked to see if there was anything in the papers for the Services Committee but couldn’t find any reference to the contracts, let alone any information. I can only assume the matter was discussed at an “Emergency” Services Committee meeting on 1 December which seems to have no papers at all – not even an agenda.
So there was no recommendation to Council for a review of compliance as recommended by the internal auditor. There was no thought of an evaluation of the cost effectiveness of the contracts. There was not even to be a competitive tender for new contracts. The Services Committee, chaired by Cllr Gieler, recommended extending the contracts, without even saying who the contracts were with or how much they were worth.
In short, councillors were being asked to sign a blank cheque.
On 12 December, a resident wrote to Council, copied to Hughenden’s councillors on Bucks Council.
The resident pointed out that the existing service contracts had been awarded for a three-year period from April 2017 - March 2020. The contracts were then extended by 12 months to March 2021 and then again to March 2022.
So the recommendation of the Services Committee to extend the contracts would be for a third time and all without public tendering. The original three-year contract would become a six-year contract.
The resident said that Council had substantially changed the framework agreement contained within the contracts and exceeded the 4-year government limit. Repeated rolling over of the contracts meant that there was no compliance with the requirement for competitive fairness (advertisement of tenders), lowest price/most economically advantageous bid, or compliance with value for public money.
The resident pointed out that public procurement rules expressly prohibit deliberately splitting contracts to bring them below the financial thresholds. The maintenance contracts therefore needed to be combined into a framework document and advertised on the Government Contracts Finder Website.
The resident thought the recommendation of the Services Committee was unlawful; a council could not resolve an unlawful decision, so the resident suggested Council take professional advice.
Finally the resident suggested that by failing to comply with Public Procurement Regulations the Council risked legal challenge from any candidate or disgruntled third-party contractor who thought that their rights under the Regulations had been infringed. This could result in legal action against the contracting authority.
Now this worried me as the resident clearly wrote with some knowledge.
During the next few days, I therefore reminded Council of the internal auditor’s recommendation. I said Council needed to carry out the review which the internal auditor recommended and ensure Council was compliant with the Regulations and not risking legal challenge.
I said that, in order to do that, Council needed information but it had no information in the papers for the Council meeting.
I thought Council could be seen as negligent if it didn’t take the internal auditor's recommendations seriously.
I should also say that residents had no information either. The Council’s decision-making was not open and transparent and the public could not hold the Council to account. This was not in line with councillors’ Code of Conduct.
On 14 December, the Clerk responded:
“This Council has not acted outside the law. Speculation of those who are ill informed is both unhelpful and indeed egregious to the functioning of this Council and the well being of both members and officers. I would respectfully ask that you consider carefully your words and actions, and ensure that you have had a full set of facts rather than the opinion of a few before continuing further on this path.”
I didn’t find this very helpful as the internal auditor had concluded that Council had acted outside the law. This was not speculation but a conclusion from a qualified internal auditor.
I repeated my concern that Council could continue to be in breach of the Regulations and open itself up to a risk of legal challenge.
I again pointed out that Council had not been provided with any facts for the meeting. Nor had Council been provided with any professional advice as to whether or not Council was complying with the law.
I said that Council should not be asked to take a decision on tens of thousands of pounds on this basis.
The Clerk then advised that “Council has withdrawn the invitation to bid [from the Councils' website], therefore it cannot be breaking the law. It is entirely lawful to extend the existing contracts by a further year.”
Now I’m no expert on public procurement (far from it) but I had read the Government’s guidance and this advice worried me. So, I asked the Clerk if that was her own opinion or was it based on advice from elsewhere. If the latter, I asked to see that advice.
I received no response.
I had heard nothing from other councillors.
Meanwhile, I had concerns about other items on the agenda and I had asked for the meeting to be cancelled, not least because the association of local councils had advised councils not to hold meetings in December and I could see problems for the Council holding its meeting, as planned, in the Council car park.
I did not know, despite asking, whether the meeting would be quorate until about an hour beforehand. When I found out there were only 5 councillors present, I said I was going home and walked away.
As I walked away, Cllr. Gieler, who was chairing the Council meeting, said I showed contempt for the Council, that he hoped I would resign and that I had wasted thousands of pounds of Council money.
Well you can decide for yourself whether he is right.
All I would say is that I had a genuine concern that the Council would be taking decisions which would lead to non-compliance with the law.
And I have to ask why is the Council so desperate to extend these contracts with no competition for a sixth year?