At Colocate Velindre we view the publishing of the legal advice to us, shared on this site as a key moment in the New Velindre story (in blog A Legal First followed by the Opinion). It poses serious questions for pivotal decisions by Welsh Government and Velindre University NHS Trust regarding the new Velindre procurement process – and possibly others like it.
Regarding the procurement, Simon Taylor, Barrister in Procurement and Competition at Keating Chambers considers that: ‘there are reasonably good arguments that Velindre/NHS Wales have made manifest errors and acted in breach of their duties under the Public Contracts Regulations 2015’ (found in the full Advice posted on this site and especially at major section 3, beginning ‘Insummary my view, based on…’)
But it is these same breached UK regulations that Velindre Trust claims to have diligently followed, (rather than any foreign practices, say in sentencing). The Trust reiterated the claims to Senedd Members, and recently to Audit Wales and the media. Hence:
“The procurement process for the new Velindre Cancer Centre (nVCC) project was undertaken in line with procurement law, UK and Welsh Government policy and all required due diligence was undertaken.” https://nation.cymru/news/awarding-of-contract-to-build-new-cancer-hospital-broke-procurement-rules-says-barrister/
This somewhat hazy, generalised response carried in the Nation Cymru report is disappointing and a thin reply to a serious set of specific legal arguments made public. We can’t help thinking that the Trust could surely have offered Nation Cymru’s thousands of readers a more informative sentence or two, in reply to explicit issues around the procurement for the new cancer centre.
The Trust had pressed on with awarding the contract to the Acorn Consortium, even though alerted in 2022 to bid-rigging convictions against two of its companies. On Velindre’s own account to a Senedd all-party committee, it did so for the sole reason that the main company had immediately launched an appeal process.
Such an unusual and startling logic has depended right up to the present on the addition of a short phrase to UK regulations, found only in the Wales’s MIM requirements*. This new rule only required debarment of a company from tendering if the organisation had arrived at what is labelled as a conviction ‘by final judgement’. These three words became deemed in Wales to mean: ‘after exhausting all court appeals’. An outcome, of course, that would almost always take several years to reach, making the rule near useless.
The Trust therefore pronounced the Sacyr legal case as still ‘live’, and so not yet requiring debarment of the company from the contract. This opinion came from the same legal company setting up the MIM regulations but its advice remains to this day unpublished and inaccessible so far as we know.
Hence, the core of everything according to this new MIM approach, is that a lower court’s decision on serious fraud can just be ignored for procurement and tendering purposes, even though viewed in the UK as a valid conviction for organised crime. This Welsh device, then, actually contravened what key UK rules required, namely debarment of any company that has been found guilty in any court. Hence Mr. Taylor has strongly challenged the the Trust’s and Welsh Govenment’s position. Take just one of his statements:
‘There is a reasonably good argument that a ‘conviction by final judgment’ just means a conviction i.e. a finding of guilt by a presiding court for a particular offence and that the lodging of an appeal does not make the lower court’s determination any less final. That seems to be the interpretation used by the CPS in the UK (see its guidance on Appeals to the Court of Appeal, which refers to the role of its Appeals and Review Unit being “to conduct the full range of appeals against final judgments.”) [Para 7 (2)] The full argument should of course be read in the light of the whole legal advice which contains much further evidence.
It seems to us that Mr. Taylor’s legal argument, unless specifically overthrown, renders deeply problematic the words quoted above in the Trust’s statement. The repeated statement exposes the Trust’s procurement decision as still completely wedded not just to MIM words added to UK regs, but also a novel interpretation of them. This reading, therefore, was very much not ‘in line’ with law and UK policy at the time but was actually infringing them. The conflict would have been even greater with the newer UK 2023 Procurement Act, especially the key Schedule 6. The Trust, however, gives no hint here of its responsibility to address the now contested added phrase.
From Mr. Taylor’s evidence, then, we conclude that the procurement process simply could not, as claimed by the Trust, ever have been following UK regulations at the time. Hence, until the Trust can publicly set out how its lawyers have disposed of rebuttal evidence like that from Mr. Taylor, we urge withdrawal of the quoted words above from the Trust’s testimony. We also urge the Trust to follow our example and in the public interest publish its own legal advice received, in its entirety.
Meantime, most people will surely find themselves joining the dots. Logically, if the Welsh Government’s MIM approach to guilty verdicts really were a UK legal principle, all kinds of bad things would assuredly be unleashed. For example, an accountant convicted of multi-million pound fraud may remain free and join the Board of the Bank of England just because of an appeal in process. On the same grounds, a crime boss exploiting children could remain at large, and, say, become a primary school teacher until all court appeals are exhausted.
There will be so much more to say in further blogs analysing the rest of this significant Trust statement to Nation Cymru, and also the relevance of it all to the Audit Wales exercise to whom the Trust reported the legal opinion now under challenge. So watch this space. See also the highly significant footnote* below.
*MIM – Mutual Investment Model. It is lauded for placing a Welsh Government-nominated director at the heart of any MIM 25-year ‘maintenance’ contract controlling the new facility. This has been presented as a key and core benefit of MIM’s government equity investment. However, it has transpired in a recent Audit Wales report that this expectation has completely failed.
https://www.audit.wales/sites/default/files/publications/public%20finance_public%20impact_eng.pdf
(paras 70-71) So far as we can tell, up until the AW report the information in this footnote had never been shared by Welsh Government with the public, or possibly even with Senedd. And likely never would have been except for the work of a Senedd committee and campaign lobbying to it.
