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Introduction
This case study analysis will consider two scenarios. The first scenario argues as if there is enough evidence that, Bill who joined Peradua as their Director of Procurement in September 2009 did help Peradua to win the contract of replacing reporting system and that the Trust did not follow the correct procedures in awarding the contract. The second analysis argues that there is not enough evidence that Bill helped Peradua win the contract and that the Trust followed the correct procedures in awarding the contract to Peradua.
The first scenario: The Trust did not follow the correct procedures in awarding the contract to Peradua
Under open procurement procedures, in accordance with regulations 23 – 26 of Public procurement law, the Trust did not conduct a proper evaluation of the bids presented to it so as to ascertain whether the participating economic operators were eligible to tender their bids as required in provision 23 of public procurement law (Trepte, 2007). The circumstances surrounding how Perudua was awarded the contract are questionable as per public procurement directives. From the case study, Peradua only tendered for the contract after Bill had joined them, just three weeks before the deadline for tender submission. Bill was working with Adastra at the time of the preparation of tender documents. He, therefore, had all information as per what constituted the tendered documents by Adastra. Of special importance, in this case, is the price that Adastra bided. A closer look at the circumstances surrounding the awarding of the contract to parade suggests that there is evidence of bribery on the side of Peradua.
It is clear from the case study that, Bill, the new procurement director of the Peradua integrity was questionable. This is evidenced by his former behavior while working in a copper mining company in Peru. Where he was involved in bribery and had a criminal record. It can therefore be conclusively agreed that, in this case, study, he was bribed by Peradua into joining them to help them win the said contract.
Bill helped Peradua get the contract by disclosing the Bid price, Adastra had quoted in their tender documents. By knowing the bid price Adastra had tendered, Peradua was in a position to bid at a lower price. The main criteria as per Trust’s specifications were to award the contract to the economic operator whose bid price was the lowest. Peradua knowing what Adastra (competitor) had bided, had an undue advantage over Adastra in tendering for the contract (Arrowsmith, 1993).
To ascertain whether there were malpractices in the contract procurement process Aurora NHS Trust are required to provide the information requested by Adastra. But, in accordance with the Freedom of Information Act 2000, Aurora NHS Trust is barred from providing the information requested by Adastra, if the information so sourced is not of great importance to the public (Trepte, 2007). The Act, however, has a provision that gives individuals the right to access the information kept by public entities in some cases. It also has a provision that creates exemptions from the liability to disclose information and the provision that sets up the pacts for enforcement and appeal (Gormley, 1997). As a public entity, Aurora should comply with this Act’s provision and provide Adastra the information on the criteria they used to arrive how at their decision and details of the winning bid. This will help Adastra in understanding whether Aurora NHS Trust used the correct procedure in awarding the contract to Peradua. This information can guide Adastra in filing a lawsuit against the Trust if the information reveals that the Trust did not follow the correct procedure in awarding the contract to Peradua.
Adastra can prevent Peradua from beginning the work in January. If Adastra establishes that Peradua used bribery to win the contract, it has the right to file a lawsuit barring Peradua from beginning the work in January. This is because as per the Public procurement directives in England, the contracting authority should follow the correct process in awarding a contract. All parties involved are required by law to adhere to best public procurement practices.
Additionally, for this case study, the circumstances surrounding the winning of the contract suggest that Peradua violated the public procurement directives as stipulated in the procurement law. If the court finds that there is enough evidence, it should stop Peradua from beginning the work and compel the Trust to initiate a new one whereby it will follow the correct process. Without question, we see how Peradua utilized the knowledge concerning the tendering of Adastra through Bill to win the contract. This is in violation of public procurement directives and therefore Adastra can stop Peradua from starting the work in January (Bovis, 2005).
Adastra can as well sue the Trust for not following the correct process in awarding Peradua the contract. First, the Trust gave the contract to Perudua in suspicious circumstances. Perodua was the last to send their bid and I do not think whether the three weeks time span was sufficient for the Trust to fully evaluate the qualifications of Peradua in order to ascertain whether it was eligible for the contract (Arrowsmith, 1993). Following this, it is clear that the Trust did not carry out a proper evaluation of Perudua position about the contract. For instance, if the Trust had conducted a proper evaluation of Peradua before awarding the contract, it could have established that those who participated in Peradua tender were corrupt, Bill (the new procurement director for Peradua) had a previous conviction of bribery and as such their tendering may not have followed the correct procurement procedures.
There is clear evidence that the Trust abetted bribery that led it not to follow the correct procurement procedure. This is a violation of public procurement directives as stipulated in England law (Hjelmborg & Jakobsen, 2006). This can guide Adastra in stopping the work as scheduled.
Since, the Trust failed to follow the correct procurement, hence breaching public procurement directives it is liable for the damages that Adastra suffered in the course of the contract process (Gormley, 1997). Peradua is also liable for damages Adastra suffered in the course of the tendering process. Peradua violated public procurement law by using the information that it got from Bill, the former Adastra procurement boss to win the tender. According to privacy law, it is illegal to access someone’s private information (Tyrell & Bedford, 1997). And in pursuant to privacy law, Peradua violated Adastra’s right to keep its information confidential.
Adastra should be compensated for the financial loss it incurred due to loss of man-hours from its workers lost in days they were involved in the tendering process. It should also be paid by the Peradua for using its private information to win the contract with Trust.
The tender details of Peradua in law are classified as private and confidential information but in this case study, Peradua can be compelled by the court to disclose them (Hjelmborg & Jakobsen, 2006). Under privacy law, nobody is allowed to disclose someone’s private information. This law protects individuals’ private information from being used by others who are dangerous. Under the Public Interest Disclosure Act, there is a provision that stipulates that where there is evidence of impropriety within a firm as in the case of Peradua then the information should be made public without fear of revenge (Trybus, 1999). Perhaps, this is founded on the idea that malpractice can be prevented by giving protection to those who disclose knowledge that is of a greater public interest (Fernandez, 1996).
In law, if this information is of significant help in promoting public interests (Trybus, 1999). We see from the circumstances surrounding the case as of great importance to the public. For there are elements of bribery and the public is against all sorts of corruption since this violates the principle of fair play.
Under the Public Interest Disclosure Act, there is a provision that affords the public to know information that is of significant use in the pursuit of their interest. In this case, to expose the corruption in the awarding of the contract, it is of public value that the Trust discloses details of its Paredua’s tender.
Adastra is fulfilling its obligations in terms of social responsibility, ethics, and professionalism by trying to unearth the malpractice that occurred in the awarding of the contract to Peradua (Bovis, 2005). By questioning whether the Trust followed the correct public procurement process, Adastra is trying to end the culture of bribery in the public procurement process. On the other hand, Peradua is failing in all the tenets of social responsibility, ethics, and professionalism about the case under study. For one, it bribed Bill so that he can disclose some information that gave it undue advantages over its competitor (Adastra). Perudua used bribery to win a contract and that amounts to encouraging bribery which is against the principle of social responsibility.
The second scenario: The Trust followed the correct procedures in awarding the contract to Peradua
Discussion
Under the public procurement directives, the Trust followed the correct procedures in awarding the contract to Perudua. Under the open procedure, the Trust followed the correct procedure as specified in the public procurement laws (Weiss, 1993). The Trust as the contracting body advertised its intention, under Article 19 of the public procurement law, to seek bids in relation to the contract (replacing the current reporting system). The Trust also fixed the last date for receipt of bids in its contract notice whereby it gave more than 52 days (as per the procurement law) from the date when it first advertised the contract for the last receipt of bids (McCrudden, 2007).
Adastra Information Management Limited and Peradua Information Technology Services Limited among other economic operators requested the contract documents in good time that allowed the Trust, to respond to their bids in accordance to public procurement directives. The Trust also gave the economic operators an opportunity to inspect the site about the contract as required by law (Arrowsmith, 1992).
Under open procurement procedures, in accordance with regulations 23 – 26 the Trust evaluated the bids to ascertain whether the economic operators may be considered as ineligible to tender as provided in provision 23 (Bovis, 2006). The Trust examined the economic operators to ascertain whether they met the minimum qualifications it required since both parties had done previous assignments for the Trust. Both Adastra and Peradua met the required qualifications, that is sound economic, financial, and technical ability as specified in the tender document.
In awarding the contract to Peradua, the Trust based its reason on exclusively the lowest price. This was appropriate for this case study, as the Trust’s contract specifications were very clear and fixed, and without any ambiguity (Arrowsmith, 2005).
According to the criteria of exclusively the lowest price, the contract is awarded to the bidder who was not eliminated from the tender process at the qualitative selection phase and whose bid was not eliminated in the technical examination phase (Digings, & Bennett, 1992). The bid was considered to be meeting all specifications. It is also the bid that was, (in the financial evaluation phase), providing the most economical solution for the Trust.
The Trust is also considered the most economically sound bid. The Trust had worked with Peradua before and it never doubted their quality of work and as such Perudua was the economic operator whose tender bid was the most economically sound. The Trust might also have given some emphasis on its operational performance.
In respecting the law of fair treatment in procurement procedure and transparency, the Trust provided all relevant information pertaining bid selection procedures to all those who participated in an attempt to make the playing field level (Cox, 1993).
Reference list
Arrowsmith, S., 1992. A Guide to the Procurement Cases of the Court of Justice. Winteringham:Earlsgate
Arrowsmith, S., 1993., Remedies for Enforcing the Public Procurement Rules. Winteringham:Earlsgate
Arrowsmith, S., 2nd ed, 2005.The Law of Public and Utilities Procurement. London: Sweet &Maxwell
Bovis, C., 2005. Public Procurement in the European Union. Basingstoke: Palgrave MacMillan
Bovis, C., 2006. EC Public Procurement: Case Law and Regulation. Oxford: OUP
Cox, A., 1993. Public Procurement in the EEC: the Single Market Rules and the Enforcement Reigme after 1992.Winteringham: Earlsgate
Digings, L. & Bennett, J., 1992. EC Public Procurement: Law and Practice (looseleaf)London: Sweet & Maxwell.
Hjelmborg, S. & Jakobsen, P.S., 2006, Public Procurement Law – the EU directive in publiccontracts. Copenhagen: Djøf
Fernandez, M., 1996.The EC Public Procurement Rules: A Critical Analysis.Oxford: Clarendon Press
Gormley L., 1997. Gordian Knots in Public Procurement Law.Koln: Bundesanzeiger
McCrudden, C., 2007. Buying Social Justice: Equality, Government Procurement, & Legal Change.Oxford: OUP
Trepte, P., 2007. Public Procurement in the EU: a Practitioner’s Guide. Oxford: OUP
Tyrell, A. & Bedford, B.,1997.Public Procurement in Europe: Enforcement and Remedies.London: Butterworths
Trybus, M.,1999. European Defence Procurement Law: international and national procurement systems as models for a liberalised defence procurement market in Europe. London: KluwerLaw International
Weiss, F., 1993. Public Procurement in European Community Law London: Athlone Press
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