Framework contracts – don’t worry your pretty little head about them.

Last month (December 2010) was looking a bit stormy for Westminster Council after the announcement that the European Commissioners investigation into Westminster Council’s procurement procedures had ended. The long running investigation had started after a complaint made against Westminster City Council was sent to the European Commission concerning the award of their Pay-by-Phone framework contract.

Things kicked off in the preceding month when upon learning that the case had been closed, the Council put out a press release. Westminster Council wanted everyone to know that they had been cleared of all wrong doing. Smug looks all round then at City Hall, as Westminster City Council had said all along, they were confident they would be vindicated and that joyous day had arrived. But the media was showing very little interest in the press release, why weren’t church bells ringing out across the land?

Someone dropped a clanger

The Councils splendid press release sat boldly on the Councils website for only 18 glorious days, until the party was gate crashed. The bubble burst for the Council on the 25th of November when some young upstart hack at the BBC published an article claiming that the Council had got the words in their press release the wrong way around. Instead of saying cleared of all wrong doing it should have said doing wrong. The Council acted swiftly (possibly a first) and removed the press release the day the BBC published their article.

Then a couple of days later Nutsville published a timeline detailing some information that the Council didn’t know. Worse still, as we believed that Westminster Council can never do any wrong and must have removed their press release by mistake, we republish a copy of the press release we had saved for them.  It was our civic duty after all.  Even though we had republished the press release, it seemed the public believed the BBC’s story rather than Westminster Councils.

Fortunately for everyone Westminster Council have an outstanding legal team to help guide the often dim-witted public through the complexities of framework agreements. Westminster Councils Head of Legal, Peter Large stepped in at two meetings, to patiently explain to the board members of Partnerships in Parking and then to some of Westminster’s own Councillors that there had been no law breaking let along doing wrong.

With Peter Large’s experienced hand on the tiller we knew we were in safe hands, as he guided even the most cynical members of the attending public away from the choppy waters of doubt and into the calm waters of Prozac bay. We learnt that the only reason Westminster Council agreed to limit use of the Pay-by-Phone contract to the original 7 members of PiP wasn’t because there was any infringement, no it was because it was what the OGC wanted Westminster to do. It was the OGC fretting about getting an adverse finding by the Commissioners in relation to framework contracts which might prejudice their own position. Fortunately for the OGC and for the EU Commissioners Westminster Council choose to go along with it. Or as Peter Large put it “is it really much skin off Westminster or PiPs nose if we make those concessions”. Just because the first criticism the EU Commission made of Westminster Council, was that the framework contract didn’t adequately identify those authorities who could use it, doesn’t make the EU right. As Peter said he “does not consider the identification of those contracting authorities which were entitled to use the framework contract was uncertain or insufficiently transparent

It seems that those foreign EU johnnies weren’t playing fair. Peter explained that the EU Commissioners wouldn’t let Westminster Council deal directly with them, they were made to suffer the indignity of passing control over to the UK Governments representatives, the OGC.  Peter Large thought the EU investigation was a little Kafkaesque (marked by a senseless, disorienting, often menacing complexity) and told everyone just how frustrating it must have been for him, as he said “Nothing then happens for months and months, despite us saying well what’s going on please. Then around about October we get a letter from OGC saying oh well we’ve heard from the Commission that actually Tower Hamlets and Enfield have got framework contracts why didn’t you tell us about those? We don’t know the basis of that allegation, or who’s made it, it’s all very strange

We think everyone was reassured to hear that Peter Large had personally gone to the trouble of inspecting both the Enfield and Tower Hamlets Pay-by-Phone contracts, and it was wrong to say the contracts were the same ones that PiP was offering to it’s members. Yes they were completely different contracts, perhaps even in so far that some of the words were in a different order.

What the EU Commission said to the UKIP MEP

A UKIP MEP had been asking the EU Commissioners about Westminster’s framework contract, and hadn’t they told him that the Council had indeed infringed EU procurement law.  Well we knew Peter Large was a true professional when he explained that as “What the Commission said when they were asked a question by a UKIP Member of the European Parliament was that they sent a formal notice to the United Kingdom authorities in November 2009,. In this they considered Westminster had infringed EU law. In response say the Commission the United Kingdom authorities recognised the Commissioners allegations and committed to take appropriate and adequate measures for the purpose of terminating the infringement in question. It maybe thought that because the Commission has said that the United Kingdom authorities recognised the  Commissions allegations that Westminster and/or OGC have accepted that those allegations are well founded but I think that might be a little bit of spin by the Commission

So it was really a bit of spin, those EU Commissioners are really starting to look like bad eggs now. This was confirmed when Peter Large was asked by a Westminster Councillor, if no infringements had occurred why did Westminster agree to alter the contract. Oh really, Peter had already explained that to the PiP board, but just to be sure Peter very astutely pointed out to the nosey Councillor that perhaps there was some problem with the translation.

Yes of course that’s it, our Peter had hit the nail on the head, these EU Commissioner people, well they’re all foreigners aren’t they. So what if they actually write the laws, the EU Commissioners really can’t be trusted to be able to translate those laws into all of the different EU languages can they? If you think about it, we reckon that every EU member must each have a different set of laws, all down to some naff translator the EU have got stuck with. Now that Peter told us that, the penny dropped, it’s all so clear now. Poor old Westminster Council have been picked on, and by the looks of things everyone else got things wrong.

One last loose end

So what about those other two complaints made to the EU Commissioners we told you about, won’t they cause a problem? Not at all, Peter Large calmed everyone down, you see any old Tom Dick or Harry off the street can make a complaint to the EU, so don’t give those other complaints a second thought. Everyone knows it was only those bikers carping on like they do. If that bloke with beard keeps asking anymore questions just ignore him, as sure as eggs is oeufs he’ll eventually give up and go away. After all if you put your hands over your ears really tightly you can’t hear the questions, they all give up in the end.

Closing down Nutsville.

After hearing Peter Larges explanation of how the BBC, Nutsville and the public got it all so wrong, we thought Peter has a point. Framework contracts really are terribly complicated, and we should really trust the experts like him to get on with their jobs. So we began packing up our office, as there really was little point in us poking our nose where it’s not needed.

Then just as we were about to throw the dust cover over our trusty old Remington typewriter for the last time, a brown envelope is pushed under the office door. Oh no we thought, not another chancer threatening to sue us. We had only just settled the last libel case, which ran to nearly two figures, or was it two digits.

Westminster Community Homes

To our surprise the envelope contained copies of two framework contracts Westminster Council were setting up. The first is an OJEU notice for Westminster Community Homes. Westminster Council was setting up a single operator framework agreement. Westminster Council wanted to find the cheapest developer to develop a range of multi tenure housing (including, but not limited to, HomeBuy housing, housing for rent, and housing for sale). The Council were in a bit of a rush as they were using an accelerated restricted procedure. But perhaps a bit too much of a rush when we read the line “Westminster City Council’s (the Council) soon to be created Development Company (DevCo) will also be entitled to call off commissions with the development agent under the framework agreement as and when it requires services,” So Westminster have issued the OJEU notice and want to include a development company that they haven’t even had time to create yet.

Groundhog day

Then we got to the part which stated “will also be entitled to call off commissions with the development agent under the framework agreement as and when it requires services, as will the Council and all other subsidiaries or associated companies of the Council, WCH or DevCo (both those that are in existence now and those that may be in existence in the future)”

But didn’t the EU Commissioners say that to ensure transparency and equal treatment where a framework contract is to be used by several contracting authorities these must be identified explicitly.

To eliminate any doubts, it was time for Nutsville to get some legal clarification on this. Who better to explain things than Westminster Councils very own Head of Legal. We only had to check our comprehensive notes from Peter Larges clear instructions to the PiP board members, which was;

“It’s not actually difficult to comply with the consequences of the Commissions approach to framework contracts. What you just have to do is make sure you identify by name all the authorities who you want to be able to participate in it. So if you want to let a contract which is available for use by all London boroughs, then you just list all the London boroughs in your OJ notice and in your contract documents ”

The second document out of the envelope was for another OJEU notice, with the same Westminster Council interpretation of the EU Procurement laws. In other words anyone can use these framework contracts, it’s all very free and easy isn’t it.

Two further documents in the envelope were the details of who had been awarded the contracts. One contract was awarded to Tribal Consulting Limited, with the second contract being awarded to Westminster Council in the guise of City West Homes Limited

Now what are the odds of the Council winning it’s own contract. So out of a possible 7 bidders Westminster Council owned City West Homes wins, do you wonder what the other bidders might be thinking?

The last document put things into perspective, as it was Westminsters cabinet member report. This report explains how Westminster Council has set up a charity to use for tax avoidance and make City West Homes more competitive (so it can win bids, get it). Funding was obtained from the taxpayer in the form of Government grants. Westminster Community Homes applied for the grants, whilst Citywest Homes went out and purchased 73 properties. Then CityWest Homes gave the 73 properties, chucking in 6 more it already had, to Westminster Community Homes. Next Westminster Community Homes continue to buy up properties and also ‘buy’ <cough> two areas of land from Westminster Council.

Lets sell off the graveyards for two pence.

Perhaps the one paragraph that might raise more than a few eyebrows is paragraph 2.4

“The suggested basic principle for the relationship is that WCC offers the land at nil cost in exchange for a number of affordable units. Any profit/excess from schemes would be split between the WCC and Joint Venture Partner; with overage being paid to WCH as “gift aid” thereby avoiding Capital gains or Corporation tax and enabling these sums to be reinvested in additional affordable homes and services. Private housing would be delivered through the Joint Venture Partner possibly in consortia with a RSL.”

We just have a hunch that Nutsville will be writing about Westminster Councils tax avoidance and procurement procedures in the near future. The cover is off the Remington.

Source documents:

OJEU notice 1

OJEU notice 2

Contract award 1

Contract award 2

Cabinet member report

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2 Comments

EddieJanuary 25th, 2011 at 6:49 pm

Be afraid Westminster be very afraid! A new Nuts campaign is about to take off and it’s gonna hurt you like hell. WCC like to make their dollars from the three P’s PARKING, PROPERTY and POOR people but the end is nigh for their dodgy scams.

BanditJanuary 25th, 2011 at 8:09 pm

So Ali G’s Mole Whacking enterprise is obviously paying huge dividends then. Not.
Mole-smeller pursuivant…

Perhaps it was the result of another piss-poor tendering exercise in which Wastemonster inevitably end up with the the most incompetent scrapings from the bottom of the barrel.

Goad of Toad Hall, Bodger More, Ali the Rat and now Mole, messing around in office, Victoria Street is far less whimsical than ‘Wind In The Willows’ and not nearly so charming. ;)

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