Maintaining the pressure

It’s a big week for Napo in Parliament with simultaneous meetings of the Family Court Unions Parliamentary Group where Cafcass Chief Executive Anthony Douglas will be attending and a ‘Speak up for Justice’ review session with Sadiq Khan in advance of the showpiece events that Napo will be covering at the TUC and party conferences.

On Wednesday we are back at the Commons for what I hope will be a bumper attendance at the TR Campaign Rally and Lobby with ex- Probation Chiefs Joe Kuiper’s and David Chandler among the speakers, alongside supportive politicos and yours truly. More important however will be the contributions from members working at the front face who we hope will tell us about the shambles they are trying to cope with.

More bricks in the wall of silence

More from the Moj appears below. Yes, it’s another stonewall response to one of the many Freedom of Information requests that we have made. This one’s about wanting to know who exactly is in the mix for the TR bidding process which I wrote about in my last blog.

If you don’t want to read on, the message is pretty much along the lines of: ‘We are still not going to tell you what you want to know but don’t worry it’s all in hand and going swimmingly well.’

Freedom of Information Request

Dear Mr Lawrence,

Thank you for your email of 7 July in which you asked for the following information from the Ministry of Justice (MoJ):

“… can the unions now be furnished with a list of all contractors who have submitted bids for the 21 CRC's or a combination of same?”

Your request has been handled under the Freedom of Information Act 2000 (FOIA). I can confirm that the Department holds the information that you have asked for but in this case we will not be providing it to you as it is exempt from disclosure. We are not obliged to provide information relating to commercial interests. In this case, we believe that the information would, or would be likely to, prejudice the commercial interests of any person (including the Department) which holds this information (Section 43(2) of the Act). 

In line with the terms of this exemption in the Freedom of Information Act, we have also considered whether it would be in the public interest for us to provide you with this information, despite the exemption being applicable. In this case, we have concluded that the public interest favours withholding the information. When assessing whether or not it was in the public interest to disclose the information to you, we took into account the following factors:

Public interest considerations favouring disclosure:

• Transforming Rehabilitation is a Programme of major reform within Ministry of Justice to transform the way we deliver rehabilitation services and therefore the public will have an interest in how the Department is developing these reforms, especially given the Programme’s focus on reducing reoffending and public protection. Releasing the information requested here could provide assurance that there is a strong market in place to take over the existing Community Rehabilitation Companies (CRCs) currently delivering services under public ownership.

• Publishing the list of organisations who are currently bidding in the competition would give existing CRC staff an indication of who their future employers may be when the new contracts come into effect.  This may allow staff to make informed decisions about their careers in the probation service.  It would also give other stakeholders in the Criminal Justice System an indication of the organisations they will be required to be engaged with in delivery of their business in future.

• In December 2013 the MoJ published a list of organisations who had passed the first stage of the competition process – the Pre-Qualification Questionnaire (PQQ) stage – on the Government website.  It is therefore in the public interest to issue the list of organisations as they currently stand to ensure the public have up-to-date information available. 

Public interest considerations favouring withholding the information:

• In order to ensure that the taxpayer receives the best value for money as a result of the current market competition for rehabilitation services, it is important that bidders should not be given the opportunity to adjust their approach to bidding according to which other organisations are currently in the bidding process. There is a risk that bidders may formulate a pricing strategy partially based on their business knowledge of confirmed competitors. This risk is particularly apparent in the ongoing competition for CRC contracts where there is a cap of a 25% market share that an individual organisation can be awarded. This means that bidders could seek to exploit their knowledge of the level of realistic competition in specific Lots (including by speculating as to where competitors have focused their limited options to apply) to reduce the value for money achievable by the Ministry or to pull out of specific Lots. Therefore if bidders were to receive formal confirmation from the MoJ of which other bidders are in the competition this could create an inflated or distorted pricing strategy in bids, reduce competitive tension, and compromise the Department’s ability to obtain best value for money. This issue is especially pertinent as the competition moves towards the submission of revised offers.

• Confirming the identities of all the bidders currently participating in the evaluation process would provide an indication of organisations who have subsequently withdrawn from the process since the public announcement of those who had passed the first stage of the process - the Pre-Qualification Questionnaire (PQQ) stage – in December 2013. This would potentially create the opportunity for negative speculation about why those organisations are no longer involved in the competition, and adversely affect the commercial interests of those organisations.  Should those organisations wish to bid for other Government contracts, the Department’s ability to secure value for money would be compromised if those organisations have had their commercial interests affected.

   We reached the view that, on balance, the public interest is better served by withholding this information under Section 43 (2).

You can find out more about Section 43 by reading the extract from the Act and some guidance points we consider when applying these exemptions, attached at the end of this letter. You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/section/43 with further guidance available at http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance

While we are unable to provide a list of bidders I am sure you will be interested to hear that there remains a strong competition in all regions for the contracts to run the 21 Community Rehabilitation Companies with over 80 bids having been received and an average of four bidders for each area. Over half of the bidders include a voluntary, mutual or social enterprise organisation and mutuals continue to feature strongly, with eight potential staff mutuals competing for a share of the contracts.

In addition to this, charities experienced in tackling a range of issues affecting offenders, small and large businesses and experienced multinationals have partnered together to bid for the work that will help turn offenders’ lives around. All Tier 1 bidders have experience of working with offenders or across the wider Criminal Justice System. As well as the lead provider bids, almost 1000 organisations have registered to play a part in the wider supply chain, including more than 700 listed as VCSE (voluntary, community or social enterprise) organisations. The Transforming Rehabilitation Programme is currently having more detailed discussions with bidders to allow them to finalise their bids prior to the selection of preferred bidders. The Programme remains on track to sign contracts with successful bidders by the end of 2014.

You have the right to appeal our decision if you think it is incorrect. Details can be found in the ‘How to Appeal’ section attached at the end of this letter.

A litany of excuses

So the Moj can’t release information that would otherwise clearly be in the public interest because companies who have pulled out may have to explain why to their shareholders, and could compromise their willingness or capacity to bid for future NOMS work (because if they said TR was rubbish NOMS won’t be their friends anymore) and/or  telling the companies who are in this ‘robust’ competition who they are up against could lead to them altering their bid even more than NOMS are doing for example, changing the PbR mechanism by removing Tier 1 clients.

What this is really surely saying is that (a) there isn’t a robust competition exercise but a desperate attempt to keep the dead duck alive; (b) NOMS aren’t talking to anyone because it’s the government’s prerogative to sulk at the continual exposure of corruption that we are unearthing whilst trying to make the whole discredited process work again and (c) the bidders have completely captured the market, the price is rising and the last thing they want is us generating a public debate about corruption in high places and making it even more complicated for them. Readers are invited to choose one (or even all three) of the above options.

Another bite of the cherry

Note also the revelation that the TR programme has entered into talks with those bidders who made it past the first cut off point to allow them to reshape their bids. That’s simply because we know already that the majority of bids from the so called big players can only have been unfit for purpose and that because of this a do it at all costs’ order has gone out from the top.

How do we know these things? We are not telling, but if I was a contractor who pulled out from making a final bid I would be strongly be considering whether there is mileage in suing the Secretary of State.