The Importance of Recording Key Procurement Meetings

In my first blog of 20 August I mentioned two recent successes for Plaintiff bid challengers in the Northern Ireland courst. Final judgment in the second of these was handed down yesterday. Again, as I was in this case for the Plaintiff, and there may yet be an appeal, I leave it to others to make substantive comments on the case. The case concerns the correct approach to assessing bids made in multi-lot tenders.

I can however draw attention to one passage which needs no explanation and would appear to have a broad general relevance.

In Northstone (NI) Limited v Department for Regional Development (Transport NI) [2020] NIQB (neutral citation to follow), Horner J. was considering the conduct of a meeting to make certain key decisions in allocating contracts. In the absence of any minute of that meeting he commented on the importance that the court places on the creation and retention of appropriate records in these cases. He made this specific comment.

"There are no minutes of the meeting of 24 September 2015 available for the court to consider. No satisfactory explanation has been provided to the court for the absence of minutes. I would have expected the meeting to be minuted, and in particular, I have difficulty in understanding why there is no record of any discussion about “the duplication of key personnel/operatives/sub-contractors/plant in the Quality Submissions” for each of the six Contracts. This is a telling omission. If minutes had been taken and lost I would have expected to be told this in no uncertain terms. The other alternative explanations are that there are minutes but that as these undermine DRD’s defence they have not been disclosed. Alternatively, the decision to keep no minutes was a deliberate one because DRD was fearful of creating a hostage to fortune. Neither of these explanations reflect well on DRD.

The court was told that the DRD (and the Civil Service in Northern Ireland) did not have any policy for when meetings should be minuted. If this is correct, then it is about time such a policy was drawn up by the Civil Service in general, and the DRD in particular. The DRD should be accountable to the tax payer and its decision should be transparent and lawful. The records of its meetings, especially where they relate to the award of contracts worth millions of pounds, should be accurately minuted as a matter of course. I would expect such a meeting, as the one on 24 September 2015, to be minuted and, if not, a good reason why no record was kept. In this instance I was offered no explanation other than it was informal meeting. I do not accept that this an adequate or acceptable explanation."

This reinforces previous judicial observations in England and Northern Ireland emphasising the importance of records when making key decisions.