A win for the Good Law Project, and the importance of procurement transparency
The Good Law Project (GLP) recently challenged the award of a £70bn contract by East of England Broadband Network (E2BN) to the Place Group, on the basis that it breached requirements of the Public Contracts Regulations 2015 (PCR).
With the contract ultimately pulled and the matter settled out of court, the most recent case outcome is a clear example of how vital transparency in awarding and bidding for tenders can be for those involved in procurement process.
This article explores what happened and how procurement professionals can be diligent going forward.
What is the Good Law Project?
The GLP is a not-for-profit campaign organisation that uses the law to protect the interests of the public. It challenges cases that defend, define, or change the law and seek to question abuses of power and inequality.
Earlier this year, it sought to challenge an award of a contract to oversee a £70 billion ‘Everything Net Zero’ Framework Agreement from East of England Broadband Network (E2BN) to the Place Group, a relatively small company based in Penzance, Cornwall.
Questionable framework agreement
Framework agreements set out terms under which a public body may purchase goods or services without further open tender. When contracts are awarded through the agreement, the usual rules about open advertisement and competition do not apply.
The award of the contract would have allowed Place Group the opportunity to control how projects aimed at reducing the country’s carbon emissions were tendered from the entire public sector.
Place Group would essentially would become a middleman and a neutral vendor, responsible for matching companies who can sub-contract on green projects with local councils, schools and hospitals. A powerful position for a company that had a total of two employees.
Lack of transparency
GLP sought to understand (1) why E2BN, a small entity itself, was able to offer a framework agreement for such a large sum (2) why E2BN was able to offer a framework agreement for NetZero when it specialised in broadband as its regular work and (3) how Place Group came to be chosen.
The claim raised several important issues regarding the lawful award and use of framework agreements, with a particular focus on the duty of transparency.
A win for GLP
GLP filed a judicial review claim in August as it believed that the award of the contract was unlawful. It demanded that E2BN was transparent about the deal and requested taht it provide further clarification on how the successful tender was selected.
Following the recent judgment in R (Good Law Project) v The Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC), which confirmed that non-economic operators such as GLP could have standing to enforce the PCR by way of judicial review depending on the merits of the complaints, E2BN has now pulled the billion-pound framework agreement with Place Group, citing ‘commercial expediency’ in the face of a potential trial.
We understand that this matter has been settled out of court, a potentially expensive error on E2BN’s part.
The new Procurement Bill
As the new Procurement Bill makes its way through Parliament, the Government has stated that it aims to ‘embed transparency throughout UK Public Procurement’. It is therefore key that the duty of transparency is observed by both public bodies and suppliers. Tender processes should be carried out in a fair and transparent manner on both sides.
Public bodies should ensure that every step is taken with this in mind, as the process is open to public examination, review and therefore, challenge.
This case started to raise the question of whether it is appropriate for a very narrowly focussed contracting authority to let a framework which is ostensibly available for the entire public sector, or a very widely defined part of it. It would have been interesting to see the case brought to trial, but it has raised the issues nevertheless and contracting authorities should expect frameworks in future to be subject to an increased level of scrutiny on this basis.
For suppliers, this duty is key too. The new requirements around notices and disclosure of assessment summaries at the end of procurement in the new Procurement Bill is likely to mean that more supplier information will be publicly available and open to scrutiny from competitors. Suppliers should bear this in mind when submitting a tender.
How we can help
For more information or to discuss how any of the above might apply to you, please contact Alison Walton using 0191 211 7850 or [email protected], or Leah Heatley using 0191 211 7948 or [email protected].