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Addendum to the Note to the DRD investigations body regarding the Ballycastle -

Rathlin Island Ferry Service Tendering Process, Tender Reference S1584306

Introduction

Rathlin Ferries Limited has now had the opportunity to examine a number of
documents released by the Department for Regional Development under the Freedom
of information Act, and has identified further matters which are relevant to the
investigation into the conduct of the Tender process.

1. As early as October 2007 the Department is aware of the importance of scoring


mechanisms as —— advises both —— and ——
"As has been the case the issue remains the nature of the scoring process and our
collective need to justify our actions" the Department was therefore aware that
there were differences in the tender process and that such differences required to
be justified. At no stage was this justified to bidders. At this time both Sub Criteria
and Weightings are produced although these are different to those used in the
second Tender Process. It should be noted that RFL formally requested clarification
on the scoring process but was advised that it was only what was in the Tender,
and no further information was provided. Given the existence of detailed weightings
being available throughout both Tender processes, this is a fundamental failure to
deal in fair open and transparent manner, as there is no valid reason to withhold
such information, and this must therefore have been done wilfully. We also regard
this as a clear breach of the requirement set out in point 2.9 of the Government
Procurement Code of Good Practice1

2. In an exchange of emails between —— and —— on the 14th March


—— confirms to —— that " .... EU treaty rules apply which requires
openness, fairness, and transparency in relation to Part B procurements? The
department was therefore aware of the requirement to operate within EU
Procurement Regulations. RFL considers that the Department ignored or chose to
ignore this fundamental principle.

3. In an email on 1st April from —— to —— —— asks for ...


"an estimate of the costs to accommodate a passenger only vessel on the Rathlin
ferry service at both Rathlin and Ballycastle harbours". —— is therefore clearly
aware that the bid from Mr O'Driscoll is non compliant.

4. In an email from —— to —— on 10th April 2008 ——


endeavours to justify that that expenditure funding of the "relatively small scale of
the harbour works" is not inconsistent with the terms of the tender on the basis that
£50k is not "significant” and cites the following "Tenderers should note that neither
the Department nor Moyle District Council envisage providing for any significant
investment in upgrading or improving the existing berths" This is a blatant attempt
to find a loophole to support his actions. He chooses however to ignore the second
part of that clause (3.2.27) which he has also cited in that same email - "It is the
responsibility of the tenderer to satisfy itself that the vessel proposed is compatible
with existing berths and harbour facilities.” The whole of this clause within the
Terms of Reference leaves tenderers in no doubt, and cannot in any way be
subjected to the interpretation placed on it by ——. Given the key constraint in
the Tender the Department in no circumstances should the Department have given
consideration to a tender which required additional harbour works. This again
highlights the failure of the Department to operate in accordance with procurement
regulations.

5. —— confirms to —— on 11th April that expenditure in the region of £50k


is "not significant'. Given the overall budget for the provision of the service, this ·
sum has to be considered significant.
1
http://www.ogc.gov.uk/documents/cp0080_Gov_Procurement_Code_Good_Practice.pdf

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6. On the 13*“ March —— advises —— that "any significant
alterations to either harbour will require to be ratified by Moyle DC. ——
replies on the 14th, posing the question "Does the requirement that council must
ratify harbour alterations and the Harbour User Agreement mean that the panel is
unable to determine whether the O’Driscoll bid is fully compliant until a Council
decision is taken’?" This demonstrates that the Department is fully aware that the
O’Driscoll bid is not compliant and can only be made so by altering the fundamental
basis of the Terms of Reference of the Tender, and that Moyle District Council do
regard the work as significant.

7. By the 16th April the estimate for the harbour works has risen to £150k, as detailed
in an email from —— - more than three times the original figure, and is
passed off with the comment "we are content that the expenditure is not significant.
We are therefore content to invest this money to secure the bid from Mr
O'Driscoll" This again is further evidence that without this expenditure Mr
O’Driscoll’s bid could not proceed. It is also disturbing that this threefold increase
seems to go without further comment from CPD. Such a statement and actions can
only highlight that the Department were heavily in favour of awarding the Contract
to Mr O’Driscoll at any cost, and regardless of the provisions of the Tender.

8. On 14th April —— advises —— by email that he found an


error in his spreadsheet relating to his evaluation of the Calmac service offering, but
there is no evidence of this error being corrected.

9. Elsewhere the Department has stated publicly that it was not practicable for it to
advise all tenderers that additional money may be available for Improvements to
the Rathlin Ferry service. We note however that it was easily able to do so in
respect of the table of Harbour Dues provided by Moyle District Council.

10. Amongst the documents released was the tender submission from Mr O'Driscoll.
We have previously indicated specifically why it was non compliant. On review of its
content, we note that Mr O’Driscoll did not in fact supply any timetables within his
tender, contrary to the requirements of 5.3.1 "Tenderers must provide details of
their proposed schedule for the service, including any variations between the winter
and peak season service and services above the minimum standard" and yet this
Essential Criteria has a tick in the CPD checklist, allowing it to proceed to be
scored. Of major concern is the fact that on 6th March, shortly after the initial bids
are opened, and prior to the issue of any clarification questions, CPD receive
additional information from Mary O’Driscoll who provides Draft Timetables - a
major omission from their bid. It is contrary to EU procurement rules to accept such
additional information after the bid submission, and a question that we have to ask
is what prompted this'? RFL believes that there has been inappropriate contact from
officials involved in the tender. That is was considered necessary to incorporate
such additional information again confirms that the O’Driscoll bid was non -
compliant and that Mr O’Driscoll was awarded the contract improperly and in
breach of EU rules.

11. The bid submitted by Mr O’Driscoll is further deficient in a number of areas:

3.2.2 " .... Tenderers must address each of the following bullet points in Section S:
Tenderers must demonstrate that that they understand each requirement and a
simple statement of compliance will not be a sufficient response." RFL submits that
in a number of areas the responses given in the O’Driscoll bid were insufficient to
address this requirement.

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5.8.1 "The Department places great importance on the implementation phase of
this contract. The possibility of a change of Operator as a consequence of this
tender exercise could increase the potential for disruption to services and for
operational incidents and accidents. Tenderers should, therefore, demonstrate that
they have fully considered these issues and their technical submissions must
include a detailed implementation plan. This plan must address all the key issues
and include a detailed timetable for their achievement within the period from
contract award to contract commencement, for agreement with the Department".
The submission within the O’Driscoll tender is not compliant with this requirement.

5.8.2 "In addition, the implementation plan should, as a minimum, address the
following issues, with dates where possible:

• Achieving relevant safety certification. .


• Specifying details of service timetable during the transition.
• Handling any crewing implications/changes.
• Establishing transitional arrangements for bookings.
• Setting up a shore management structure.
• Identifying the training needs of sea-going and shore-based staff and producing
a training plan to ensure appropriate training is offered timeously."
The O’Driscoll bid makes no reference to achieving relevant safety certification,
without which he would be unable to operate the service. Again the submission is
non-compliant.

5.4.1 Operational Management Plan - Records have been redacted from Mr


O'Driscoll's bid which includes aspects of this section. Further scrutiny of this section
is required as RFL believes that the bid is deficient in the provision of a detailed
plan.

12. Scrutiny of details of the Vessels offered confirms concerns previously advised to
you in respect of MV True Light. Mr O’Driscoll offers a Manufacturers Specification
of this vessel wherein its Gross Tonnage is specifically listed as 11,150 kg, typical
of that type of vessel. The Class VI Passenger Certificate supplied purporting to
relate to this vessel is for a vessel of 19.29 Tonnes. This requires further
investigation, as it casts doubt on the authenticity of tender documents.

13. The Contract was awarded (improperly) to Mr Ciaran O’Driscoll as an individual.


The service is now operated by RIFL. No documents have been produced showing
an assignment of the contract, as is required in Tender.

14. RFL considers that there is clear and undisputed evidence the Department did not
operate the Tender process in a fair, open, and transparent manner. From an early
stage of the tender process the department knew that it would evaluate the bids
against weightings and sub criteria and failed to disclose this. The Department also
ignored procurement guidance and took clear steps to ensure that it could secure
Mr O’Driscoll’s bid at any cost. The Tender process must therefore be held to be
unsupportable.

Rathlin Ferries Limited

13th October 2008