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 a named Regional Training Centre (RTC) without a tender or in respect of which the applicant’s company was not sent an RFT, on the ground that no such records exist

17 June 2020

Background

On 13 August 2019, the applicant submitted a request to the Council for any records containing details of all courses for which his company was the leading tender under the tender framework published on 20 April 2015, that were run through a named RTC for  three named Councils, and details of whether or not his company was sent a Request for Tender (RFT) in respect of each course.

On 20 September 2019, the Council issued its decision wherein it indicated that it decided to grant the request and provided a list of courses. On 20 October 2019, the applicant sought a review of that decision. He noted that all of the courses included on the list were provided by his company but argued that he had received no details of courses for the relevant period for which his company was “the leading tender” but was not sent an RFT and that were carried out by other training providers.

On 12 November 2019, the Council affirmed its original decision. It said all courses that were tendered by the RTC for which the applicant’s company was an approved trainer and to which his company responded were awarded to his company. It said RFT’s are automatically sent to those on the Framework as a matter of course. It also said the list released included courses that were not tendered during the period in question. On 31 January 2020, the applicant sought a review by this Office of the Council’s decision. He indicated that he wished to receive details of any relevant courses run without an RFT being issued or without an RFT being issued to his company.

During the course of this review, Ms Greenalgh of this Office provided the applicant with details of the searches undertaken by the Council to locate the records sought, its explanation of the tender process and the reasons provided the Council why the records sought do not exist. In his reply, the applicant indicated that he does not accept the Council’s position.

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.

Scope of Review

In essence, the applicant considers that the RTC ran training courses for which his company was an approved trainer either without having sought tenders or without having issued an RFT to his company. He is seeking details of such courses.

Accordingly, this review is concerned solely with whether the Council was justified in refusing the applicant’s request for records containing details of courses for which his company was an approved trainer that were run by the RTC without a tender or in respect of which the applicant’s company was not sent an RFT, on the ground that no such records exist.

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 its submissions to this office, the Council explained that the RTC is self-sufficient to deliver a large suite of courses as it has a number of approved internal trainers (full-time and part-time staff). It said the RTC uses the list of external trainers on the Framework where the demand exceeds the capability of the RTC to deliver the course internally or where the RTC does not have a suitably qualified trainer to deliver the course requested.

The Council added that when requests for tenders are raised, they are automatically sent, through SupplyGov.ie, to the trainers on the list of approved trainers under the Framework Agreement. SupplyGov.ie is a procurement system which facilitates Local Authorities and other State agencies in procuring goods and services from suppliers and contractors. It said it is not possible that tenders were raised in respect of courses for which the applicant’s company were eligible to apply but where his company did not receive an invitation to tender.

The Council said the applicant’s company won all the tenders that were raised by the RTC with one exception, that being a course that the applicant’s company did not respond to. It said one tender was cancelled but was retendered with additional courses added and the applicant’s company was the successful tender.

In relation to the searches conducted by the Council for relevant records, as noted above, Ms Greenalgh of this Office provided the applicant with details of those searches, along with details of the tendering process and its explanations as to why no such records exist.  As those details have been furnished to the applicant, I do not propose to repeat them in full here but I have had regard to them for the purpose of this review.  In short, the Council said the schedule of courses tendered for since the introduction of the relevant Framework Agreement are available on the SupplyGov.ie system. It outlined the types of searches that it conducted both manual and electronic, in the relevant areas and key words used to locate the records sought.

The Council said that for the minute number of courses not listed on the Framework Agreement, a Tender is raised locally and sent out to a number of training providers, usually companies on the Framework, with an invitation to quote. It said that during the period in question, there were only two courses outside the Framework for which tenders were sought and that both courses were awarded to the applicant’s company. It said that in addition, the applicant’s company was asked to provide two trainers on two courses outside the Framework and that a daily rate was sought for trainers. In summary, of 104 courses run including those outside the Framework, it said 59 were run by the applicant’s company and 39 by internal trainers, with only four courses awarded to others.  The Council in response to a request from this Office subsequently clarified this breakdown figure to be 61 not 59, it said one of these quotes provided for delivery of two courses which were listed and this should bring that figure to 60 and also stated that the applicant’s company were asked to deliver a course when an internal trainer was sick, bringing this total to 61.   It further clarified that of the four courses awarded to others, it said the applicant’s company was disqualified from two as the price on the RFT exceeded the original price on the Framework and also there was one tender for which the applicant’s company did not submit a tender.  In relation to the final one, the applicant’s company was not actually approved to deliver at a named RTC, so should not have been included on list.  

In his submission of 22 May 2020, the applicant said he believed a lot of training was taking place “outside the system” based on the following:

1. He said the RTC manager informed his colleague on one occasion that company A was delivering certain Construction Skills Certification Scheme (CSCS) courses for the RTC on a regular basis and that the Manager had attended each of these courses to ensure their quality.
2. His colleague, while delivering a MEWP training course, met with an individual at the RTC on one occasion who was carrying out a CSCS Plant course for company B under the Framework during the relevant time
3. He and his colleague have delivered courses for the RTC under the relevant framework and have spoken on numerous occasions to trainees who told them that they had recently been on CSCS plant courses through the RTC that were delivered by other training organisations.

The Council responded as follows:

• The framework was advertised on 20 April, 2015 with a response date of 11 June, 2015. It then commenced in February, 2016 and ran to December, 2018. Company A did not deliver any training courses during the period in question.
• There is no record of the applicant’s company delivering a MEWP course in the RTC during the relevant period. His company were not on the list of approved training providers for this course. RFTs were raised for all MEWP training during the period 2016 - 2018. Company B delivered two courses for the RTC during the 2016 - 2018 period, one of which was a CSCS course. An RFT was raised for the CSCS course which was automatically sent out to five approved training providers. Only two tenders were submitted. The applicant’s company did not submit a tender.
• The RTC Manager can positively state that, during the life of the framework, an RFT was raised for every course that the RTC was unable to deliver internally by using in-house trainers apart from those referenced in its earlier submission

This Office informed the applicant of the Council’s response, following which he raised two further queries. First, he alleged that company A provided the courses at their centre in a different town and not in the RTC and he asked whether RFT’s issued for those courses and if so, whether his company received one. Secondly, he queried whether his company received a RFT for any of two courses delivered by company B.

In response, the Council again stated that company A did not run any courses during the period in question. In relation to the courses run by company B, I note that the Council had already explained in its previous response that an RFT was raised for the CSCS course which was automatically sent out to five approved training providers and that the applicant’s company did not submit a tender, the inference being that his company did, indeed receive an RFT. In relation to the second course, it said the applicant’s company was not an approved trainer for delivery of the course in question and consequently would not have been issued with an RFT for that course.

I have considered the various submission of both parties carefully. Having done so, it seems to me that while the applicant made various assertions in support of his belief that the RTC ran courses without having sought tenders or without having issued an RFT to his company when it should have done so, he has provided no corroborating evidence in support of those assertions. Furthermore, the Council provided clear and compelling responses to the applicant’s specific queries and assertions. As such, I see no reason to doubt the veracity of the Council’s submissions.

Having considered the details of the searches undertaken by the Council and its explanation of how the tender process operates, I am satisfied that the Council 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 containing details of courses for which his company was an approved trainer that were run by the RTC without a tender or in respect of which the applicant’s company was not sent an RFT, 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