Another winter contract of discontent 18/1/12
For the third time in a row, Western Isles Council has ended up in a legal wrangle over winter gritting contracts.
It is presently being sued by Stornoway island contractor Duncan Mackay and Sons which claims its recent award of the South Lewis gritting tender to a rival firm is unlawful.
Last year, the council paid a £250,000 out-
This year's road salting tendering exercise was aborted at the onset of winter after a serious blunder forced the council to snatch back awarded contracts. The council got some distance figures badly wrong and had to start again but now faces legal challenge.
This afternoon (Wed) Stornoway Sheriff Court heard claims the council accepted a gritting bid from Alasdair Macdonald of Lochs, who was presented as a sole trader on the official tender forms.
However, the local authority wants to hand the contract directly to Macdonald Coaches Ltd, a different legal entity, though owned by Alasdair Macdonald.
Adding to the chaos and confusion, the council has been repeatedly using the "wrong" identity of Alasdair Macdonald. This includes references to the sole trader on legal documents as well as a legal motion asking the sheriff to give it the right to proceed and formally award the contract to Macdonald Coaches Ltd in the face of the legal challenge.
It was only in the dying moments of today’s hearing that the council's central belt-
Stewart Buchanan, advocate for Duncan Mackay and Sons, wants the court to kill off the tender and insisted the council's award letter was unlawful under European rules. Mackay's are also suing for expenses. He says the substitution of the tenderer is a change in material terms.
He challenged the truth of legal written statements made by the council including
one of its in-
According to details of the confusion given in court, the row kicked off when the council wrote to Mackay’s on 9 November telling them they had lost out on the South Lewis winter gritting contract to Alasdair Macdonald of Lochs.
D Mackay and Sons complained. They believed the council’s decision to be unlawful saying Alasdair Macdonald did not have the expertise and machinery as required under Euro tendering regulations.
The council wrote back and say tenderers need to provide two years of accounts.
On 30th November, Mackay’s point out Alasdair Macdonald would not be able to satisfy that requirement.
The council respond saying they had always actually intend to award the contract to Macdonald Coaches Ltd but made a mistake over the name of the winning business.
Its defence in court against the contract being given to Alasdair Macdonald is that it is not awarding the contract to him as a sole trader.
Council officials have given legal statements saying they always knew they were talking about Macdonald Coaches Ltd despite the details on the official forms.
The Comhairle complicates its own stance by lodging legal documents referring to the tender being won by Alasdair Macdonald. Mackay’s advocate lists a number of examples.
Some 20 minutes before the court hearing ended this evening and with a helpful hint
from the sheriff, the council changes its crucial court motion -
Sheriff David Sutherland quizzed why the council didn't take the simpler route of
re-
He clarifies, that in his tender document, Mr Macdonald put his own name down as
the name of the organisation and stated he was a sole trader as well as giving his
own sole-
Sheriff David Sutherland will give his judgement later.