DMFD124 Respiratory Protective Equipment Contract Award

1.1. As set out in DMFD109 dated 16 March 2021, the Deputy Mayor for Fire and Resilience authorised the London Fire Commissioner to commit capital expenditure up to the value of £6,000,000 for the purchase of Replacement Respiratory Protective Equipment (RPE).

1.2. This authorisation was given following completion of the recent OJEU procurement process set out in LFC-0480 and FRB-198 with the preferred bidder identified as MSA (Britain) Ltd (“MSA”). The consequence of MSA being the preferred bidder was that the incumbent supplier of RPE since 1997 Draeger Safety UK Limited (“Draeger”) were ultimately unsuccessful. As a result, Draeger commenced proceedings against the LFC procurement exercise.

1.3. The basis of Draeger’s claim dated 23 April 2021 is that they allege the procurement process undertaken breached the Public Contracts Regulations 2015 (“PCR 15”) and as a result an automatic suspension has been put in place which prevents LFC from awarding the new contract to MSA.

1.4. The LFC made an application to court to lift the automatic suspension on the basis of urgency to award the contract.

1.5. The automatic suspension hearing took place on 14th July 2021 with two matters lodged before the court:
• an application by LFC, for the lifting of the automatic suspension which arose on issue of a procurement challenge by Draeger pursuant to regulation 96(1)(a) of PCR 15;
• an application by Draeger for an expedited trial.

1.6. The judgement was handed down on Wednesday 4 August 2021 and the Judge determined that the “balance of convenience lies in maintaining the automatic suspension and giving directions for an expedited trial in October 2021.”

1.7. The directions ordered are as follows:
• Expedited Trial date: 21 October 2021 with an estimated length of trial of 5 days (sitting days: Thursday 21 October 2021 and Monday 25 to Thursday 28 October 2021).

1.8. Officers from LFC General Counsel and Procurement have discussed the range of options available with Counsel and these are set out in the part 2 report and provide the background and rationale behind the recommendation above.

2.1 The ultimate objective is to successfully discharge all of the duties required to reach the position where a new contract for RPE can be entered into at the earliest opportunity.

2.2 Expected outcomes will be the determination of the costs and resources required to complete the actions recommended above and as set out in Part 2.

3.1 The Public Sector Equality Duty under section 149 of the Equality Act 2010 requires decision-takers in the exercise of all their functions to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other behaviour prohibited by the Equality Act 2010 (in summary, the Act makes discrimination, etc, on the grounds of a protected characteristic unlawful)
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not, including tackling prejudice and promoting understanding.
The protected characteristics are age, disability, gender reassignment, pregnancy and maternity, marriage and civil partnership, race, religion or belief, sex, and sexual orientation.

3.2 There are no specific equality implications arising from this report. The matters set out in this report concern the LFC position in respect of the litigation.

4.1 These are set out in the Part 2 report.

5.1 These are set out in the Part 2 report.

None