Projects without formal tender (FOI)

Request

It is noted that a number of projects have been entered into within the last six months, 1 January 2020 to 30 June 2020, that have not gone through the formal tender process. In connection with these please supply the following:

A

The number of projects that have been engaged with third parties that have not gone through the formal tender process

B

If not included above the number of projects that have obtained appropriate financial exemption from the formal tender process

C

Details of all these projects

D

The value of all these projects

E

The names and address of the supplies of all projects that have not been subject to a formal tender

F

The rationale behind each decision as to why a formal tender process was not required

G

Details of who, in every case, made the decision that a formal process was not required and copy of any documentation to support these decisions - to include but not limited to any published internal guidelines.

H

Given that no formal tender process has been undertaken what metrics have been used to ensure that the agreed contract has provided value for money for the public of Jersey

I

If there has been no formal tender how has the Government bench marked the agreed contract against market rates

Response

A to G

Please see attached table.

Projects spreadsheet 

The exact details of some projects are deemed commercially sensitive and are exempt under Article 33 (Commercial Interests) of the Freedom of Information (Jersey) Law 2011.

The exemption documentation which is requested at point G is also considered exempt under Article 33 (Commercial Interests) of the Freedom of Information (Jersey) Law 2011 and full justification of this exemption is included in the Public Interest and Prejudice test below. 

H

The test for value for Money is determined utilising a range of measures and will differ depending upon the nature of expenditure incurred. Value for money does not purely focus on the commercial value of expenditure but also on the broader definition, for instance Economy, Efficiency, Effectiveness and Equity (see the National Audit Office Definition).

To provide this for each contract included would take over the 12.5 hours allowed for Freedom of Information response under the Freedom of Information (Costs) (Jersey) Regulations 2014.

I

Benchmarking is used where applicable and relevant. This will be against existing comparable expenditure data or similar government contracts (eg NHS, Crown Commercial) where information is available. In some cases, given the unique nature of contracts the Government of Jersey undertake, there may not be relevant benchmarking comparisons publicly available. To provide this for each contract included would take over the 12.5 hours allowed for Freedom of Information response under the Freedom of Information (Costs) (Jersey) Regulations 2014.

Articles applied

Article 16 A scheduled public authority may refuse to supply information if cost excessive

(1) A scheduled public authority that has been requested to supply information may refuse to supply the information if it estimates that the cost of doing so would exceed an amount determined in the manner prescribed by Regulations.

Regulation 2 (1) of the Freedom of Information (Costs) (Jersey) Regulations 2014 allows an authority to refuse a request for information where the estimated cost of dealing with the request would exceed the specified amount of the cost limit of £500. This is the estimated cost of one person spending 12.5 working hours in determining whether the department holds the information, locating, retrieving and extracting the information.

Article 33 Commercial interests

Information is qualified exempt information if –

(a) it constitutes a trade secret; or

(b) its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information).

Prejudice / public interest test

Article 33 (b) allows an authority to refuse a request for information where its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information).

Whilst we accept that the public may have an interest in the value of contracts between the Government of Jersey and third parties, we believe certain contract values are commercially sensitive as they are the outcome of negotiations between parties and that the release of this data could affect the negotiation of future contracts and the relationship with third parties.

In relation to the requested documentation, this comprises exemption forms completed and signed in relation to each exemption detailed on the spreadsheet.

Redaction of these forms to allow for release was considered at length, however it was ultimately considered that after the removal of all pertinent data, the remaining text would not be of any legitimate public interest.

Work was undertaken to extract the approvers details from the breach forms and include this within the spreadsheet in partial response to this part of the request.

The following considerations were discussed in relation to the commercial and economic implications of release of these documents:

• Exemption forms detail the process by which decisions were made. These may identify that there are restricted numbers of relevant companies, they may identify that there was specific analysis of the market undertaken to ascertain the best candidate and to clarify why a tender was not appropriate. Essentially they detail market practise and analysis which could impact on future decision making.

• Could be deemed prejudicial to Government in any forthcoming tenders as they detail methodology and process in relation to procurement. This could lead to companies focusing their tenders – and ultimately to the Government not appointing the right parties.

• A number of the forms relate to services procured during lockdown and in relation to the ongoing Covid-19 pandemic. Whilst the pandemic is ongoing, details of the choice of service provider and certain details of the services procured and considered of greater sensitivity.

• The Covid-19 forms could also be considered under Article 35 (Policy under Development) of the Freedom of Information (Jersey Law 2011 – there is ongoing work in relation to the pandemic and will be for some time as Government reacts to the changing nature of the current situation

• Some of the forms contain what is essentially risk analysis – in particular in the case of certain Covid forms. This could have law enforcement implications and therefore Article 42 (Law Enforcement) of the Freedom of Information (Jersey Law 2011should also be considered.

It was ultimately considered that the potential for commercial and economic prejudice outweighed the limited public interest in releasing the documentation, in light of the comprehensive information already provided within the spreadsheet.