Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for records containing details of courses for which his company was an approved trainer that were run by Ballycoolin Regional Training Centre (the RTC) without a Request for Tender or in respect of which the applicant’s company was not sent a Request for Tender, on the ground that no such records exist

16 December 2020

Background

On 28 January 2020, the applicant submitted a two-part FOI request for details of any Construction Skills Certification Scheme (CSCS) courses for which his company should have received a Request for Tenders (RFT) under the Tender Framework first published on 20 April 2015. He also asked for details of any such courses run without any RFT's being issued or run without RFTs being issued to his company.

On 25 February 2020, the Council informed the applicant that it does not hold records relating to the first part of his request where he sought details of any CSCS courses for which his company should have received an RFT under the Tender Framework. It explained that it transferred that part of the FOI request to Kerry County Council, being the body with responsibility for SupplyGov.ie, which is a procurement platform facilitating Local Authorities and other State Agencies in the procurement of goods, works and services from suppliers. Section 12(3) of the FOI Act provides for the transfer of requests where the records sought are not held by the body but are held by another FOI body.  The Council also refused the second part of the request under section 15(1)(a) of the FOI Act on the ground that its regional training centre (the RTC) did not run any CSCS courses without any RFT’s being issued or run outside of the Tender Framework.

On 16 March 2020, the applicant sought an internal review of that decision on the basis that his company received a very small number of RFT’s under this Tender Framework, despite being what he termed the “leading tender” on the Framework for a number of categories.  He asked whether courses were run where RFTs were issued out but not issued out to his company when they should have been.  On 7 April 2020, the Council, by email, supplied the applicant with an excel sheet of records it had received from SupplyGov.ie outlining the courses run and additional information was provided to him on 26 May 2020.

The applicant again wrote to the Council with some further queries on 4 June 2020, and on 9 July 2020, the Council affirmed its original decision on the basis that the records concerned do not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, although it did not address further queries made by the applicant at this point.  Reference to these queries was made in a later response to this Office by way of submissions that I have detailed below.  The applicant subsequently applied to this Office on 14 July 2020, for a review of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the applicant and the Council as set out above and to the correspondence between this Office and both parties during the course of the review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for records containing details of CSCS courses run without any RFTs being issued or run without the RFT being issued to his company, on the ground that no such records exist. It is not concerned with matters arising in connection with the first part of the request that was transferred to Kerry County Council.

Preliminary Matter

It is important to note at the outset that it is not the role of this Office to examine complaints about the administrative actions of public bodies or to adjudicate on how they perform their functions generally.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if a record cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of a public body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found. 

In relation to the searches conducted by the Council for relevant records, Ms Greenalgh of this Office provided the applicant with details of searches undertaken by the Council to locate the records sought, along with details of the tendering process and its explanations as to why no such records exist.  As these details were furnished to the applicant, I do not propose to repeat them here in full but I have had regard to them for the purpose of this review.

At this stage, I should explain, for the benefit of the applicant, that many of the queries he raised fell within the scope of the first part of his request that was transferred to Kerry County Council. While this Office sought to engage with the parties in relation to those queries, I am satisfied that they cannot form part of this review as they relate to that part of the FOI request that was transferred.

In its correspondence with this Office, the Council said there were no CSCS courses run without any RFT being issued since the Framework was developed and introduced in 2015.  It further stated that the procurement procedure that is in place ensures that all courses delivered via the Regional Training Centre follow public procurement procedures.  It also made some further points addressing the system that is in place:-

• Once a tender is raised on the Supplygov.ie system, the system takes over inviting the potential tenderers. 
• The system then produces a list of tenderers that it has invited and the Council is made aware of these details. 
• In cases where a tenderer is not invited to tender, the Council is not informed and Supplygov.ie can only answer that question.
• Therefore, the Council is unable to provide any comment when an RFT does not issue to a particular company for a particular course as it has no control over this system and that the Supplygov.ie system comes into effect when a request for tender issues.
• The applicant’s company was invited to tender for all RFT’s for which it was approved on the Framework.
• The Council also conceded that it is not in a position to answer certain questions regarding the operation of the online procurement system of Supplygov.ie because it is not the authority in charge of the system, simply a paying client and have repeatedly recommended that the applicant seeks answers to those questions directly to Supplygov.ie/Kerry County Council.
• The Council went to great lengths to try to explain to the applicant how the SupplyGov.ie tendering system works, even though the system is run by another local authority.

The applicant also requested to know if mini-competitions were run between the leading tenderers in respect of the CSCS tenders in other training centres and if two different systems were being used.  Firstly, the Council state there is no leading tender on the Framework and once all providers have met certain criteria they are therefore approved to deliver training once a successful tender notice has been receipted.  The awarding criteria is then based on the lowest quotation submitted.  Secondly, the Council believes that there may be some confusion around the references to mini competitions and this, it believes, would appear to be one of terminology/linguistics where some other Councils refer to the running of an RFT as a mini-competition rather than an additional process run after the initial RFT.  It again confirmed that it does not run any additional subsequent or mini-competitions after it posts an RFT on Supplygov.ie.

In summary, no records exist, as there were no CSCS Courses run without an RFT being issued since the Framework was developed and introduced in 2015 as the procurement procedure that the RTC/the Council have in place ensures that all courses delivered via the RTC follow these established public procurement procedures. 

Lastly, as to whether courses were run where an RFT was issued but not issued to the applicant’s company when it should have been, the Council believe the only way this could be done is to run courses outside of the Supplygov.ie system, which it stated that it does not do.

The applicant was provided with the details of the searches carried out, it was outlined to him that no further records were available for release by the Council.  Having considered the details of the searches undertaken by the Council and its explanations, I am satisfied that it has carried out all reasonable steps in an effort to locate the records sought by the applicant. Accordingly, I find that the Council was justified in refusing the applicant’s request for records on the ground that no such records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access, under section 15(1)(a) of the FOI Act, to any additional relevant records other than those already released on foot of the applicant’s request.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator