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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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this question is based on EU law. In 2007 my company won a

Customer Question

this question is based on EU law. In 2007 my company won a contract that was advertised and processed through the europiean journal and the ojui process. It was a 5 year contract with a two.5 year extension. The contract has operated with out issues successfully. At the 5 year end the association asked that we sign a document to reduce the 2.5 year extention based on the fact that they were at the final stages of merging with another association . Trusting what they said we did sign the agreement meaning that the contract would end in March 2014. We assumed that the merger would bring a better future for us with the association as the main contract in 2007 that we won also offered a possible partnership.The merger did not happen.
In June this year the association with out warning told us that the remainder of the extention would not be used and that the association were entering in to a frame work and the contract would be tendered through that which ment we could not tender as we were not in the framework and the first possible chance we could apply to be a contractor on the framework was Dec 2014 this would be when the framework contract would be advertised through ouji. Our contract with the association would end in July 2014 this means we miss the boat by 5 months. The association have said there desison is not based on any reflection of our company.......... We have liked at the companys on the framework they are very very large companies and it is clear they would not be able to provide the services at the rates we can and this is public money being spent as this is a housing association. Secondly by their actions our company will have to cease to trade as this contract holds 75% of its turnover and this will also prevent us from being able to tender for any large contracts as our turnover will be below all thresh holds. We have worked with this association for 19 years and feel that their actions are unfair unjust. Is there anything that would protect us. The remainder term of our contract in place had we not agreed to the one year only would end in Sept 2015 which would give us a chance to get on to the new framework contract being advertised in Dec 2014
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi

Thank you for your question and welcome to Just Answer.

Is the issue essentially that you are being excludes from the right to put in a tender?

Kind regards

AJ
Expert:  Alex J. replied 3 years ago.
Hi

Can I be of any assistance?

Kind regards

AJ
Customer: replied 3 years ago.


yes this is because they have taken away our right to tender. We agreed to reduce the term of the extention due to the merg that was ongoing that never went ahead and really shoot ourselves in the foot. Going in to the framework will not be value for money as the companies on the frame work are huge not like us small and local and we demonstate local and social connection to all sites. Even if they would give us time to get on to the framework in Dec 2014 in stead of awarding the contract through the framework to start August 2014. It is un just and unfair and will result in the company cease to trade for no good reason. We were also told that the board were not made aware of any background of the currant contractor. Surley theres an eu issue here of being treated grossly unfair

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

Yes there are specific eu procurement rules to cover this.

So I can check the relevant provision can you tell me what industry the contract relates to eg IT, utilities etc?

Kind regards

AJ
Customer: replied 3 years ago.


yes this is a housing services contract (national) covering cleaning and bulk waste cleaning of communial areas the contract was advertised on the E U journel as a 5 year plus two ( even though we were tricked in to the reduction and was offered on an open book policey with a possible partnership that we have never been told was changed. Their action is not justifiable at this stage and they have said their decision is not because we have not carried out our work correctly It makes no sence


 


The board also were not given all the background facts that has also been confirmed. If they do this we are finished and over 60 jobs will go that's not what a housing association should be doing

Expert:  Alex J. replied 3 years ago.
Hi

Thank you for your patience I am researching this now and will revert to you in the morning.

Kind regards

AJ
Expert:  Alex J. replied 3 years ago.
Hi

My sincere apologies I have had no Internet access since Friday.

I will respond this morning.

Kind regards

AJ
Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

There are protections for a procurement process where you feel you have been unfairly treated.

Have firstly exhausted all internal appeals procedures?

Is it a local council that is awarding these housing contracts?

Do you want the decision to be reconsidered in a transparent or do you simply just want to be part of the process?

Kind regards

AJ
Customer: replied 3 years ago.

ok Yes I have exhausted the system and asked them to review their decision.


If they want to go down the framework route then they must let us take part we are the contractor in place. The framework contract goes out to tender Dec 2014 through Ojiu. They are tendering our contract now to start August 2014. This means that the contract in place on the framework now will cease in March 2015 and association are paying extra to get an enhanced membership with the procurement for housing group which is reduculous as the association have their own procurement dept and it will cost a fortune. It is also very clear that the companies on the framework will never get near our price structure,as we are small and local. What I need is something from Europian law that says just taking away our right to requote for our contract that we won through Ojui a europian procedure is wrong then they cant do it? If they do we will cease to trade.

Expert:  Alex J. replied 3 years ago.
Hi

Thank you

I am sorry if I have not already asked this question but is the awarding party an English entity?

Are you suggesting that the decision making process is actually flawed?

Kind regards

AJ
Customer: replied 3 years ago.


the awarding party is a housing association in the UK. They have taken away our right to retender for our work and by doing so we have not future as we will not have the turnover to tender for similar work. And the route they are taking will cost much more than is they procured it themselves and was not going in to a frame work where the companies on the contract framework are massive and expensicve

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

Aside from the EU legalisation, if you have exhausted all appeals and you feel that the way they have reached this decision is flawed or unreasonable you can challenge the decision making process by judicial review.

Judicial Review won't actually challange the decision but will determine if the decision has been made correctly. Housing Associations can have their decisions reviewed in this manner.

Can you tell what part of the process was potentially flawed?

Kind regards

AJ

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