LGRP Framework

Richard Wells made this Freedom of Information request to Yorkshire Purchasing Organisation

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The request was refused by Yorkshire Purchasing Organisation.

Dear Yorkshire Purchasing Organisation,

You are currently running a tender process with Waltham Forest council for the replacement of the LGRP framework. During the procurement you (or the council) decided that rather than appointing 10 providers to lots 1 and 2 you would instead award contracts to every supplier who applied who scored the minimum score which you claimed was to "ensure that there is sufficient capacity and diversity to provide services across the UK". This does not appear to make sense, however. The framework specification states that every provider has to be able to cover all roles in the public sector on a national basis across all regions of the UK, and there was a specific question to ask bidders about this which all must have answered to your satisfaction to be kept in the competition. I am therefore wondering whether there is another reason why you expanded the list of suppliers, such as to ensure that certain suppliers made the list.

Therefore, please can you provide me under the Freedom of Information Act with copies of any communications between the YPO and the Council and between staff and officers of YPO concerning the decision to extend the number of suppliers. It should be relatively easy to find this information as the timeframe is only from May when the bids were submitted through to now.

Yours faithfully,

Richard Wells

Data Protection, Yorkshire Purchasing Organisation

1 Attachment

Dear Richard Wells

 

Thank you for your email dated 14th October 2021 (below). Your request is
being dealt with under the terms of the Freedom of Information Act 2000
and will be answered within 20 working days.

If you have any queries about this request, please do not hesitate to
contact us using the email address above.

 

 

               Dear Yorkshire Purchasing Organisation,

 

               You are currently running a tender process with Waltham
Forest council for the replacement of the LGRP framework. During the
procurement you (or the council) decided that rather than appointing 10
providers to lots 1 and 2 you would           instead award contracts to
every supplier who applied who scored the minimum score which you claimed
was to "ensure that there is sufficient capacity and diversity to provide
services across the UK". This does not appear to make sense,            
however. The framework specification states that every provider has to be
able to cover all roles in the public sector on a national basis across
all regions of the UK, and there was a specific question to ask bidders
about this which all must have        answered to your satisfaction to be
kept in the competition. I am therefore wondering whether there is another
reason why you expanded the list of suppliers, such as to ensure that
certain suppliers made the list.

 

               Therefore, please can you provide me under the Freedom of
Information Act with copies of any communications between the YPO and the
Council and between staff and officers of YPO concerning the decision to
extend the number of               suppliers. It should be relatively easy
to find this information as the timeframe is only from May when the bids
were submitted through to now.

 

 

 

 

Kind regards,

 

YPO - Better value, delivered.
41 Industrial Park, Wakefield, WF2 0XE
Tel: 01924 834834
[1]www.ypo.co.uk

Connect with us:
[2]Twitter  |  [3]LinkedIn  |  [4]Facebook  |  [5]Blog

 

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Data Protection, Yorkshire Purchasing Organisation

2 Attachments

Dear Richard Wells

 

I refer you to the attached letter in response to your recent request
under the Freedom of Information Act (FOIA) 2000 dated 14^th October 2021.

 

If you are unhappy with the handling of this Freedom of Information
request please contact the undersigned in the first instance. Should you
still be dissatisfied then you may apply for an internal review by writing
to the MD of YPO, Simon Hill, at the address below.

 

Should you still be dissatisfied following this review you may appeal to
the Information Commissioner at Information Commissioner’s Office,
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF, or email
[1][email address]

 

 

Kind regards,

 

YPO - Better value, delivered.
41 Industrial Park, Wakefield, WF2 0XE
Tel: 01924 834834
[2]www.ypo.co.uk

Connect with us:
[3]Twitter  |  [4]LinkedIn  |  [5]Facebook  |  [6]Blog

show quoted sections

Dear Sirs

Thank you for your email concerning my request.

I am not satisfied with the way this request has been handled. I shall start with the limited amount of "information" disclosed, namely "We can however confirm that the justification for the decision to include a greater number of providers on the LGRP framework than initially envisioned is rooted in ensuring providers were treated equally following our evaluation." This was not a justification for increasing the number of providers - it was perhaps a way to explain how you extended the number of providers and wanted to make it fair but it was not a reason to extend. Furthermore, the fact that you extended the number of suppliers did not treat bidders equally, as those who would have been excluded for not achieving a high enough score would have been eliminated and by moving the goalposts you are advantaging them. The analogy I shared with the Council was that if this were a golf tournament and the cut was at 3 under par but Rory McIlroy had a bad round and so came it at 1 under par, saying that everyone who scored par or better would go through to the last two rounds to ensure that Rory made it would be manifestly unfair on the golfers who made the cut.

Turning to the reasons you refused my request, I do not believe that section 42 has been validly engaged. As requested, I am replying to you in the first instance rather than requesting an internal review immediately to allow you to reconsider your response, but I shall be happy to escalate this to an internal review and/or a referral to the Information Commissioner if needed.

Section 42 is a specifcally designed to deal with information that is subject to legal professional privilege, ie "confidential communications between the client and lawyer, made for the dominant (main) purpose of seeking or giving legal advice". Guidance from the Information Commissioner states that "The legal adviser must have given advice in a legal context; for instance, it could be about legal rights, liabilities, obligations or remedies. Advice from a lawyer about financial matters or on an operational or strategic issue is unlikely to be privileged, unless it also covers legal concerns, such as advice on legal remedies to a problem."

In this instance, I accept that it is possible that there was some correspondence with your in-house counsel seeking advice on whether it was legal for you to extend the number of suppliers. However, I do not believe that that was the only correspondence or communication concerning this matter, and I believe that prior to seeking legal advice you would have had some internal discussions on the selected suppliers and whether or not to extend the reach. There would also likely have been some internal memos or correspondence with the Council to discuss this that would not fall within the remit of privileged correspondence with legal advisors. In addition, there would likely have been discussions on "financial matters or operational or strategic issues" that was unlikely to be privileged.

You also suggest in your email that the correspondence was with "internal legal and contracts advisors", which would appear to extend beyond the reach of section 42.

You also suggested that section 43 is engaged as disclosure would harm your commercial relationship with the Council. I cannot see how this would be the case assuming that you have not done anything wrong. I know that Waltham Forest Council is committed to openness and I would doubt that they would "punish" you for disclosing information under a FOI request.

Both section 42 and 43 are qualified exemptions and so you cannot simply state they are engaged and refuse to disclose information. You are required to conduct a public interest test to determine whether the public interest in disclosing outweighs the public interest in maintaining the exemption. The factors in favour of disclosure are significant - this is a very significant framework with a potential contract value of up to £500m which clearly attracted significant attention from across the recruitment industry and which will underpin numerous call offs over the next four years, and the extension of the number of suppliers to include everyone who passed the threshold seems not to be justified under the reasons given that you needed to ensure there was sufficient scope and capacity. The factors in favour of maintaining the exemption are less clear unless you are trying to cover up some malpractice - I do not think that it would put bidders off tendering for contracts with you, I do not think it would put off authorities working with you, it seems the only reason for maintaining the exemption is that you have something to hide.

I am happy for you to redact any material that is clear legal advice from a qualified legal professional, eg "if you extend the number of suppliers, these are the legal risks ...". I am asking you to reconsider releasing any correspondence or reports between members of the procurement team and with the Council as I do not feel these are covered under sections 42 or 43.

Please can you come back to me as soon as possible so I know whether to escalate this request to the next stage.

Yours sincerely,

Richard Wells

Dear Yorkshire Purchasing Organisation,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Yorkshire Purchasing Organisation's handling of my FOI request 'LGRP Framework'.

I received a response refusing my request a week ago, but in it the officer asked me to contact him if I was dissastisfied with the response. I did so the same day but have not had any acknowledgement, hence I am now forced to escakate to an Internal Review.

I am not satisfied with the way this request has been handled. I shall start with the limited amount of "information" disclosed, namely "We can however confirm that the justification for the decision to include a greater number of providers on the LGRP framework than initially envisioned is rooted in ensuring providers were treated equally following our evaluation." This was not a justification for increasing the number of providers - it was perhaps a way to explain how you extended the number of providers and wanted to make it fair but it was not a reason to extend. Furthermore, the fact that you extended the number of suppliers did not treat bidders equally, as those who would have been excluded for not achieving a high enough score would have been eliminated and by moving the goalposts you are advantaging them. The analogy I shared with the Council was that if this were a golf tournament and the cut was at 3 under par but Rory McIlroy had a bad round and so came it at 1 under par, saying that everyone who scored par or better would go through to the last two rounds to ensure that Rory made it would be manifestly unfair on the golfers who made the cut.

Turning to the reasons you refused my request, I do not believe that section 42 or 43 has been validly engaged.

Section 42 is a specifcally designed to deal with information that is subject to legal professional privilege, ie "confidential communications between the client and lawyer, made for the dominant (main) purpose of seeking or giving legal advice". Guidance from the Information Commissioner states that "The legal adviser must have given advice in a legal context; for instance, it could be about legal rights, liabilities, obligations or remedies. Advice from a lawyer about financial matters or on an operational or strategic issue is unlikely to be privileged, unless it also covers legal concerns, such as advice on legal remedies to a problem."

In this instance, I accept that it is possible that there was some correspondence with your in-house counsel seeking advice on whether it was legal for you to extend the number of suppliers. However, I do not believe that that was the only correspondence or communication concerning this matter, and I believe that prior to seeking legal advice you would have had some internal discussions on the selected suppliers and whether or not to extend the reach. There would also likely have been some internal memos or correspondence with the Council to discuss this that would not fall within the remit of privileged correspondence with legal advisors. In addition, there would likely have been discussions on "financial matters or operational or strategic issues" that was unlikely to be privileged.

You also suggest in your email that the correspondence was with "internal legal and contracts advisors", which would appear to extend beyond the reach of section 42 to include other non-legal professionals providing input.

You also suggested that section 43 is engaged as disclosure would harm your commercial relationship with the Council. I cannot see how this would be the case assuming that you have not done anything wrong. I know that Waltham Forest Council is committed to openness and I would doubt that they would "punish" you for disclosing information under a FOI request.

Both section 42 and 43 are qualified exemptions and so you cannot simply state they are engaged and refuse to disclose information. You are required to conduct a public interest test to determine whether the public interest in disclosing outweighs the public interest in maintaining the exemption. The factors in favour of disclosure are significant - this is a very significant framework with a potential contract value of up to £500m which clearly attracted significant attention from across the recruitment industry and which will underpin numerous call offs over the next four years, and the extension of the number of suppliers to include everyone who passed the threshold seems not to be justified under the reasons given that you needed to ensure there was sufficient scope and capacity. The factors in favour of maintaining the exemption are less clear unless you are trying to cover up some malpractice - I do not think that it would put bidders off tendering for contracts with you, I do not think it would put off authorities working with you, it seems the only reason for maintaining the exemption is that you have something to hide.

I am happy for you to redact any material that is clear legal advice from a qualified legal professional, eg "if you extend the number of suppliers, these are the legal risks ...". I am asking you to reconsider releasing any correspondence or reports between members of the procurement team and with the Council as I do not feel these are covered under sections 42 or 43.

A full history of my FOI request and all correspondence is available on the Internet at this address: http://www.whatdotheyknow.com/request/lg...

Yours faithfully,

Richard Wells

Data Protection, Yorkshire Purchasing Organisation

Dear Richard Wells

Thank you for your email dated 17th November 2021 (below) requesting an internal review. Your request is being dealt with under the terms of the Freedom of Information Act 2000 and will be answered within 20 working days.
If you have any queries about this request, please do not hesitate to contact us using the email address above.

Dear Yorkshire Purchasing Organisation,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Yorkshire Purchasing Organisation's handling of my FOI request 'LGRP Framework'.

I received a response refusing my request a week ago, but in it the officer asked me to contact him if I was dissastisfied with the response. I did so the same day but have not had any acknowledgement, hence I am now forced to escakate to an Internal Review.

I am not satisfied with the way this request has been handled. I shall start with the limited amount of "information" disclosed, namely "We can however confirm that the justification for the decision to include a greater number of providers on the LGRP framework than initially envisioned is rooted in ensuring providers were treated equally following our evaluation." This was not a justification for increasing the number of providers - it was perhaps a way to explain how you extended the number of providers and wanted to make it fair but it was not a reason to extend. Furthermore, the fact that you extended the number of suppliers did not treat bidders equally, as those who would have been excluded for not achieving a high enough score would have been eliminated and by moving the goalposts you are advantaging them. The analogy I shared with the Council was that if this were a golf tournament and the cut was at 3 under par but Rory McIlroy had a bad round and so came it at 1 under par, saying that everyone who scored par or better would go through to the last two rounds to ensure that Rory made it would be manifestly unfair on the golfers who made the cut.

Turning to the reasons you refused my request, I do not believe that section 42 or 43 has been validly engaged.

Section 42 is a specifcally designed to deal with information that is subject to legal professional privilege, ie "confidential communications between the client and lawyer, made for the dominant (main) purpose of seeking or giving legal advice". Guidance from the Information Commissioner states that "The legal adviser must have given advice in a legal context; for instance, it could be about legal rights, liabilities, obligations or remedies. Advice from a lawyer about financial matters or on an operational or strategic issue is unlikely to be privileged, unless it also covers legal concerns, such as advice on legal remedies to a problem."

In this instance, I accept that it is possible that there was some correspondence with your in-house counsel seeking advice on whether it was legal for you to extend the number of suppliers. However, I do not believe that that was the only correspondence or communication concerning this matter, and I believe that prior to seeking legal advice you would have had some internal discussions on the selected suppliers and whether or not to extend the reach. There would also likely have been some internal memos or correspondence with the Council to discuss this that would not fall within the remit of privileged correspondence with legal advisors. In addition, there would likely have been discussions on "financial matters or operational or strategic issues" that was unlikely to be privileged.

You also suggest in your email that the correspondence was with "internal legal and contracts advisors", which would appear to extend beyond the reach of section 42 to include other non-legal professionals providing input.

You also suggested that section 43 is engaged as disclosure would harm your commercial relationship with the Council. I cannot see how this would be the case assuming that you have not done anything wrong. I know that Waltham Forest Council is committed to openness and I would doubt that they would "punish" you for disclosing information under a FOI request.

Both section 42 and 43 are qualified exemptions and so you cannot simply state they are engaged and refuse to disclose information. You are required to conduct a public interest test to determine whether the public interest in disclosing outweighs the public interest in maintaining the exemption. The factors in favour of disclosure are significant - this is a very significant framework with a potential contract value of up to £500m which clearly attracted significant attention from across the recruitment industry and which will underpin numerous call offs over the next four years, and the extension of the number of suppliers to include everyone who passed the threshold seems not to be justified under the reasons given that you needed to ensure there was sufficient scope and capacity. The factors in favour of maintaining the exemption are less clear unless you are trying to cover up some malpractice - I do not think that it would put bidders off tendering for contracts with you, I do not think it would put off authorities working with you, it seems the only reason for maintaining the exemption is that you have something to hide.

I am happy for you to redact any material that is clear legal advice from a qualified legal professional, eg "if you extend the number of suppliers, these are the legal risks ...". I am asking you to reconsider releasing any correspondence or reports between members of the procurement team and with the Council as I do not feel these are covered under sections 42 or 43.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://eur03.safelinks.protection.outlo...

Yours faithfully,

Richard Wells

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show quoted sections

Data Protection, Yorkshire Purchasing Organisation

2 Attachments

Dear Richard Wells

 

I refer you to the attached letter in response to your recent request
under the Freedom of Information Act (FOIA) 2000 dated 17^th November 2021
for an internal review.

 

Kind regards,

 

YPO - Better value, delivered.
41 Industrial Park, Wakefield, WF2 0XE
Tel: 01924 834834
[1]www.ypo.co.uk

Connect with us:
[2]Twitter  |  [3]LinkedIn  |  [4]Facebook  |  [5]Blog

show quoted sections