Litigation culture has damaged procurement
width=”100″ height=”100″ />Last week a study, The Social Cost of Litigation by professor Frank Furedi and Jennie Bristow of the University of Kent, was published by the Centre for Policy Studies. And I believe its message – that a culture of litigation has resulted in significant cost to services – also applies to procurement processes.
We all know how cumbersome an OJEU process can be, and we all accept the challenges it can pose to buyer and bidder, not to mention legal challenges that appear like mushrooms after the rain.
An example from my past experience involved a process where a mistake was made with the procurement’s software functionalities not being checked correctly. As a result the scoring mechanism of four online questions was not visible to suppliers. It was an open process. All suppliers had 52 days to clarify the issue, especially given the memorandum of information document referred interested parties to online definitions. If you – as the supplier – cannot see the information needed, I assume you would ask about it, but this was not the case. An unsuccessful supplier only pointed it out during the 10 day standstill period and, following a couple of written exchanges, they asked us to re-tender the opportunity in the name of transparency and fairness.
After discussions with my colleagues we decided that in the current climate the best course of action would be not to proceed with an award and to go through the exercise again. I was not pleased – not that I was angry, or wished to apportion blame – but disappointed the ‘current climate’ meant this was what we had to do.
Most procurement professionals go a long way to ensure the fairness of a competitive process and put in place strict guidelines which provide a sound framework. But I think we are mature enough to admit we are not error proof. Is it too much to ask suppliers to take the same responsibility for the procurement process? Surely it is not unreasonable to expect a supplier not to wait for the outcome before it points out the authority has made a mistake?
Buyers and suppliers are in it together. Behaviour like that hurts all those with an interest in the process – taxpayers most of all – and a culture of mistrust replaces mutual respect and appreciation for the roles played in the process.
☛ Renata Towlson is a category manager at Nottingham University Hospitals NHS Trust
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I don’t think anyone will argue with your statements Renata. Unfortunately we have industry stating we are too cumbersome andstructured and don’t work in partnership, however the openness of working in partnership is precluded by the need to be fair and open to all. The propensity to litigate and the interpretation of the Law in favour of the litigant forces Government Procurement into 1980s era structured procurement and costs all tax payers.
I wish I had a solution short of changing the law. unfortunately, until it is harder to litigate for errors that don’t change the result or favour any party, such as your instance; then we will continue to be stuck in these costly and structured processes.
Thank you Noel. I appreciate that law changing process is not a quick one and I understand why it is in favour of the litigant forces. I am oposed however to culture the current law creates and wish law makers/executors took a fuller responsibility for the moral and ethical dimension of social climate.
Partnership cannot be developed in the climate of mistrust. I believe, there is a need for clarification on what fairness means in the human environment. But maybe it is too radical too soon.