Northern Ireland procurement – government says “we’re going to indict useless procurement people”

Public sector procurement in Northern Ireland has been a source of fascination to me for some years. It is incredibly litigious – the number of challenges for suppliers is far greater proportionately than in England and Wales, and much procurement case law comes from there. The importance of the public sector, which still represents well over 50% of the local economy, means that public contracts are a matter of life or death for many firms.

And the political history (the “troubles”) has left some lingering issues over fraud, corruption, political interference in contracts, and fairness which all seem to be heightened compared to elsewhere.  So it’s not surprising that procurement process is looked at with such care in the Northern Ireland public sector.  Witness a friend of mine who is delivering a huge number of compulsory workshops on evaluation techniques to hundreds of public servants.

One recent development which is having some repercussions is the new policy document on evaluation of tenders, recently issued in Northern Ireland, available here  09-02 evaluation of tenders 19-7-13.

There’s some of good stuff here in the document, and much I agree with, but perhaps the most  interesting  part is this at section 6.1 (my highlighting).

 “Incompetence or failure to follow a fair process may lead to the tender process being subject to judicial proceedings. This could result in the award being set aside, thereby incurring additional costs and delays. Where such an incident occurs as a result of an action, which is known to be unlawful or carried out with indifference to the consequences by a member of the evaluation panel, the officer involved could be accused of misfeasance or malfeasance in public office. This is an indictable offence that can result in the officer being made personally liable for damages and costs awarded to an injured party”.

So this suggests that someone involved in the evaluation process, who does not do something unlawful or corrupt, but is simply “indifferent to the consequences” – so perhaps careless, or lazy, or basically useless in some sense – could be indicted and made to pay for any damages awarded to an unhappy bidder who successfully challenges the process!

Can you imagine various civil servants and consultants involved in the West Coast Rail fiasco being pursued for damages to cover the cost to the taxpayer of the terminated process? My goodness, the Daily Mail would love that!

On the one hand, I’m not sure I would take on the role of chair of an evaluation panel with this in place. That’s something I still do occasionally with my consulting hat on, and I’ve done it for two sensitive public procurement exercises this year actually. But would I have agreed to do that if I’d thought I might end up thousands of pounds out of pocket if someone decided I was “indifferent to the consequences”? That’s pretty hard to show one way or another, I would think.

On the other hand, looking at some of the shambolic procurements we do see, maybe it would be good to punish a few people more directly. (I’ve just had sight of another example where you really have to wonder about the ability and indeed common sense of the people running it).  But we will see whether this has any effect or consequences in Northern Ireland anyway – my sources say it is causing some nervousness, to say the least!

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