At a behind closed doors meeting of the Otterpool Working Group in April, an officer of the Council let slip that Tibbalds had been appointed as consultants to prepare detailed plans for phase one of the Otterpool Park development, at a current value contract of £120,000. This began on the 3rd April 2020. They were awarded this contract on a waiver.
This is not the first time Tibbalds have been awarded a contract on a waiver. Under dubious circumstances Tibbalds were awarded a Princes Parade contract to the value of £98,800 in Aug 2016.
Cllr Jim Martin (pictured below) is the Green Party’s representative on the Otterpool Park working group; which hides behind closed doors. Also the Leader of the Greens, Cllr Lesley Whybrow attends, but cannot vote.
Following the meeting Cllr Jim Martin sought sight of the procurement documents. As you can see from his brief Bio he has extensive experience and is an expert witness in court cases.
When the documents were presented to Cllr Jim Martin he was shocked by the fact the normal procurement process had not been used to secure Tibbalds. Senior council officers had authorised a Waiver of Contract Standing Orders using urgency and expediency as reasons for the waiver. Put simply this means the contract was not advertised publicly; which would normally be the case. Instead senior officers choose six companies to provide tenders. How these companies were selected by senior officers is not clear, but we know Tibbalds won the contract. In doing so on the 03/04/2020 they were awarded a contract with a current value of £120,000.
If Cllr Martin is shocked by the use of the waiver privilege (using urgency and expediency), for one contract, with a current value of £120,000, then for 52 previous uses, he ought to be absolutely horrified, as they add up to in excess of £3 million.
Between 2016/17 to 2018/19, Folkestone & Hythe District Council have used urgency and expediency as a waiver in procuring goods and services on many of the 52 occasions.
The Council department which used waivers the most was the planning department (quelle surprise), with nine uses of waivers, followed by the strategic development department with seven. Most of the sixteen waivers used by the two departments have been for Princes Parade and Otterpool Park.
In April 2020, just over £250,000 worth of contracts were awarded for Otterpool Park. Tibbalds single award, using a waiver, makes up 48% of the amount awarded. How many others may have been awarded by using a waiver citing urgency and expediency?
In 2017, under dubious circumstances, Tibbalds were awarded a contract for Princes Parade, a waiver was used on that occasion as well. Andy Jarrett of the strategic development department was responsible for awarding that contract.
The say once is a mistake, twice is a pattern -three times is a habit.
Andy Jarrett (pictured) left the council under a cloud in 2007 and returned in 2016. Since then he has used a good number of waivers to procure companies by passing the normal tendering process, he’s not the only officer who uses these dark arts.
The Council officers informed Cllr Martin (a great believer in democracy), the reason for the urgency and expediency was so officers could meet the consultants before they submitted their formal tenders, allowing officers to make clear to the consultants what the council wanted.
Under s7 of the The Openness of Local Government Bodies Regulations 2014, Council officers – if they use expediency for a waiver, must keep a written record of any decision and the date the decision was taken; keep a record of the decision taken along with reasons for the decision and details of alternative options, if any, considered and rejected. The written records of the senior council officers ought to be placed into the public domain, so as to dispel the plausible suspicion of wrongdoing, as a pattern of appointing Tibbalds on a wavier has emerged.
The senior officers added in their reasons, there are a limited number of leading design practices with experience of large scale projects, who have a good knowledge of the local area. This was their justification for using urgency and expediency for the waiver to appoint Tibbalds on a current value contract of £120,000, on 3rd April 2020.
The council’s constitution under part 10, 13.1(a) and (g), does allow waivers in certain circumstances including urgency and expediency, it states:
(a) For contracts which are not subject to the EU Rules, the work, supply or service or grant of service concession is required as a matter of urgency and a delay would be likely to lead to financial loss, personal injury or damage to property; or
(g) At the discretion of the relevant Head of Service who may proceed in a manner most expedient to the efficient management of the service/Council with reasons recorded in writing.
Would Cllr Martin, or any senior council officer kindly explain how using urgency to waive the normal tendering process, to appoint Tibbalds, would be likely to lead to financial loss, personal injury or damage to property to the Council?
As for being expedient, the Cambridge dictionary definition of expedient states:
helpful or useful in a particular situation, but sometimes not morally acceptable.
The Collins dictionary definition of expedient states:
If it is expedient to do something, it is useful or convenient to do it, even though it may not be morally right.
Neither of the reasons/justifications put forward for the waiver by senior council officers outweigh the need for transparency given that their is a presumption in favour of release information relating to air, water, soil, land and landscape. All of these will be affected by phase one of the development. Lets not forget nearly £130 million has been spent or earmarked for Otterpool.
Given Otterpool Park is such a controversial project the more transparency there is, would help negate any suspicions of possible wrongdoing by the Council, as planning authority and as developer.
Cllr Martin’s went onto discover from the tender summary, six tenders were submitted and assessed by a panel of officers including James Farrar who is the case officer dealing with the Otterpool Park planning application. This suggests that the ‘Chinese Wall’ which should exist between the planning department (acting as the Council) and the strategic development department (acting as developer) of the council is not working well. Perhaps, now is a good time for a review of the Council’s “Chinese Wall” policy; which was put in place in 2016. A job for Overview & Scrutiny Committee; and Audit & Governance Committee perhaps.
Cllr Jim Martin & Lesley Whybrow put their points to the Chief Exec of the Council, Dr Priest (pictured), who assured them the correct processes were followed when the waiver was applied for; and the senior officers who signed the waiver off would have carried out sufficient checks to make sure that it was justified. She further informed the Cllrs that James Farrar was only an observer of the evaluation of the consultants. Dr Priest assured Cllr Martin, Mr Farrar did not have any active role in any decision making. She promised to look into why the paperwork implied that he was a full member of the panel. While Dr Priest is at it, perhaps she could look into why 52 waivers have been used prior to the one raised by Cllr Martin.
Placing what checks had been done and the written reports by senior officers into the public domain, would allay any concerns both Cllrs and residents may have. Dr Priest conceded that communication between Councillors and Officers needed to improve; and more frequent meetings of the Otterpool Park Working Group ought to take place, behind closed doors.
We call upon the Overview & Scrutiny Committee Chair, Cllr Rebecca Shoob (Green) (pictured) to use her powers to scrutinise the use of waivers by Council officers.