Council awards contracts ‘against DfT guidance’ says operator

Martin Allen, the minibus operator who formed the Bus and Coach Association and spearheaded changes to Section 19 interpretation, claims a Section 19/22 operator has unlawfully been awarded school contracts for which his company placed bids.

Martin, who runs JA Travel in Mansfield, placed bids for all ten Special Educational Needs (SEN) contracts to Foxwood Academy school, six of which have been run by Erewash Community Transport until this year’s tendering process. Nottinghamshire County Council (NCC) has now confirmed that six have been re-awarded to Erewash CT.

However, in Department for Transport advice issued to local authorities, councils were told that contract awards needed to ascertain whether S19 holders met one of five definitions of ‘non-commercial’ which included services: ‘…where there is no commercial market for that service – even if the payment made by passengers or another party might exceed the costs of providing the service. This could include where there were no bids received for a local authority contract from commercial operators…’

Erewash CT was in the spotlight in 2016, when its operation of tendered contracts was investigated by the DVSA. Subsequently, DVSA sent a letter to Erewash CT, finding that as the contracts had been won under competitive tender, it could not be considered to be engaged in the operation of transport services ‘for non-commercial purposes’ and advised Erewash CT to ‘bring its operations into line with all applicable legal requirements.’

Martin believes the fact that he has bid for the contracts mean they are commercial, and should automatically be awarded to an O-licensed operator. He says that to have been offered none of them flies in the face of the DfT’s direct advice.

“Frankly, I’m staggered that after more than a year of councils knowing that DfT guidance has changed so that all contested, tendered contracts are considered to be commercial, the council has just gone ahead and handed them back to Erewash CT,” Martin told Bus & Coach Buyer.

Bus & Coach Buyer has seen correspondence from eight months ago, obtained under a Freedom of Information (FOI) request, in which Erewash CT – in an email headed ‘Very good news!!’ – tells NCC it has obtained legal advice on the issue which it says Derbyshire County Council had accepted meant no action to restrict contracts to CTOs had to be taken.

NCC’s Commissioning and Compliance Officer, David Watson, replied: ‘That is good news, let’s hope this gives everyone the breathing space and time to come up with an appropriate outcome.’