1 Procurement
1. Language services are vital for ensuring justice
where not all parties speak English as their first language. When
someone is arrested, they have to be made aware of the reasons
for their arrest and of any charge in a language that they understand.
They are also entitled to interpretation and translation services
at particular stages of the judicial process. These rights are
set out in articles 5 and 6 of the European Convention on Human
Rights, as well as being necessary to ensure justice is carried
out correctly.[2]
2. Prior to January 2012, the Ministry of Justice
(the Ministry) procured most of the interpreters it required,
to meet this commitment, directly from the National Register of
Public Service Interpreters (NRPSI) via individual court staff.
Individual courts contacted interpreters directly to arrange bookings
and paid them individually. Tribunals used a different system:
a panel of interpreters and a central team to organise bookings
and payment. The Ministry had very little central management information
on the cost and usage of interpreters, particularly for courts,
but it believed the terms offered to interpreters were over generous.
In early 2010, the Ministry set out to change the way that interpreters
were procured to increase the availability and quality of interpreters;
to save money by making the booking and payment of interpreters
more efficient and reducing payments to interpreters; and, allow
it to collect management information on interpreter usage and
cost.[3]
3. What little management information the Ministry
had was mostly for tribunals. As a result, it did not base its
estimated savings on actual costs but relied instead on estimates
based on extrapolating data from tribunals.[4]
Prior to procurement, the Ministry did not have a clear understanding
of what it expected from the new system. It therefore used a competitive
dialogue approach to procurement where the specification was developed
during discussions with the bidders.[5]
The Ministry did not conduct any benchmarking with other countries,
except with the Scottish Court Service. Added to the paucity of
information about the previous system, this meant that the Ministry
did not have sufficient information to assess whether the performance
being offered by bidders was reasonable and sustainable. For example,
the winning bidder suggested that interpreters could increase
their potential earnings by attending several bookings throughout
the day, but we heard that this was not feasible as court cases
and tribunals often started late or took longer than expected.[6]
4. Only small and medium sized enterprises bid
for the contract and took part in the competitive dialogue process,
although there was no barrier to larger organisations bidding.
Capita did not bid because it did not, at that time, provide language
services. Towards the end of the process the Ministry asked a
single supplier, Applied Language Solutions (ALS) to submit a
final proposal. The Ministry did not do enough to ensure that
ALS was able to scale up quickly enough to service such a large
contract.[7] As
part of its due diligence, the Ministry obtained a financial report
on ALS which recommended only giving ALS contracts up to the value
of £1 million. However, none of the senior people in the
Ministry responsible for the contract read the report, including
the Senior Responsible Officer, and the Ministry signed a four
year Framework Agreement with an estimated value of up to £42
million a year. Under the Framework Agreement the Ministry signed
a five year contract for its own language services, which the
Ministry originally expected to cost £18 million a year and
now estimates at £15 million a year.[8]
5. Despite the size of ALS, the Ministry decided
to contract with it as a single national supplier rather than
selecting a number of regional suppliers using a single booking
portal. The Ministry expected all of its language services to
be requested through and supplied by ALS, except for its contingency
arrangements to go outside the contract. Using a single provider
means that, except for every five years when it lets a new contract,
the Ministry has foregone the opportunity to introduce competition
into the provision of language services.[9]
6. In September 2011, after signing the Framework
Agreement but before signing the Ministry of Justice contract,
ALS sought a buyer. The majority shareholder and Chief Executive
of ALS declined to appear before us, so we were unable to ask
him whether this was because ALS had increased in value as a result
of signing the Framework Agreement or because he was concerned
about ALS's ability to deliver without the support of a larger
company. Capita subsequently acquired ALS in December 2011. The
Ministry assured us that it had not, in response to difficulties
caused by the size of ALS, encouraged this acquisition nor had
it encouraged ALS to seek out a larger partner.[10]
Capita told us that its acquisition of ALS was not based solely
on the Framework Agreement with the Ministry, as this was only
part of ALS's work. It was interested in using the acquisition
of ALS to enter the lucrative language services market.[11]
7. Prior to signing the Framework Agreement,
ALS was a relatively small regionally based company. When it signed
the Framework Agreement and contract the Ministry expected ALS
to be able to scale up its business rapidly to meet the Ministry's
demand for language services. To do this ALS had to recruit sufficient
numbers of interpreters quickly. Based on data from tribunals,
the Ministry estimated that ALS would need around 1,200 interpreters
ready to work to meet the Ministry's requirements.[12]
The Ministry did not do enough to ensure that ALS would be able
to recruit sufficient numbers of qualified interpreters. ALS was
proposing to pay much lower rates to interpreters and interpreters
had clearly stated that they would not work for ALS.[13]
Although the Ministry sought the views of interpreters, it disregarded
them in its decision to go ahead with ALS as a national supplier.
If the Ministry had paid more attention to the financial report
it commissioned it might have realised that ALS could not invest
sufficiently in recruiting interpreters.[14]
Similarly, when Capita took over ALS it assumed that ALS would
be able to secure enough interpreters to meet the demand of the
contract, even though it was aware of interpreters' opposition
to the contract. Capita based their assumption on ALS's experience
in delivering language services for the police in the North West
where we heard that interpreters joined the contract after a few
weeks despite initial resistance. Capita did not consult with
interpreters directly.[15]
8. ALS proposed a new process of assessing interpreters
and assigning them to tiers according to their skill level. The
Ministry could then request an interpreter from the tier that
corresponded with the requirements of each job. The Ministry did
not take any independent advice on whether this approach would
work in practice. Nor did it conduct any testing on its feasibility.
Instead, it relied on assurances made by ALS. ALS asked the views
of an independent academic but the Ministry did not confirm the
academic's views directly with him. As a result, the Ministry
was unaware of the academic's "profound reservations"
about this approach. The Ministry was also unaware that in practice
it was not possible to conduct assessments in all languages; that
ALS had only commissioned assessments in 32 languages or that
the partner that ALS had appointed to conduct the assessments
and marking was falling behind in marking assessments. It was
also not possible to place interpreters in rare languages into
tiers as there was no Diploma available in rare languages and
they could not be assessed.[16]
9. We were pleased to note that the Ministry
retained the ownership of the database of interpreters and so
could transfer the contract to a different supplier at the end
of the five year contract, or earlier, if Capita-ALS were in material
breach of the contract.[17]
The contract did not, however, incorporate sufficient penalties
for poor performance. As a result there was insufficient incentive
for ALS to deliver a good service from the start. Although ALS
under Capita (Capita-ALS) delivered a very poor performance in
the first three months after the contract went live, the Ministry
could have fined it just £11,000. The levels of penalties
were not high enough to deter ALS from promising a service that
it was unable to deliver.[18]
In the event, the Ministry did not fine ALS at all for the first
three months and only fined it £2,200 for May and June. It
told us that this was because Capita-ALS was investing heavily
in trying to make improvements and that the Ministry had expected
problems at the start of the contract period. The contract did
not include processes to ensure a smooth transition, such as a
slower regional roll-out or proper pilots before going live nationally.[19]
2 C&AG's Memorandum, The Ministry of Justice's
language services contract, September 2012, para 1.1 Back
3
Qq 367-370, 458-460; C&AG's Memorandum, paras 1.2, 1.4, 1.6 Back
4
Qq 97, 121-122, 367-370; C&AG's Memorandum para 1.6 Back
5
Q 97 Back
6
Qq 32, 45-47, 101, 184 Back
7
Qq 48, 260 Back
8
Qq 54-74 Back
9
Qq 84-85, 90-91 Back
10
Qq 99-100, 202-203, 208, 261, 263; C&AG's Memorandum figure
1 Back
11
Q 265 Back
12
Qq 48, 68, 367 Back
13
C&AG's Memorandum paras 1.12-1.13, 2.4 Back
14
Qq 40-41, 68, 128-130 Back
15
Qq 281, 384-5, 407, 427 Back
16
Qq 75-81, 186, 199-202, 333, 336, 356-358 Back
17
Qq 209-210, 419 Back
18
Qq 231-232, 234-236, 243, 248; C&AG's Memorandum para 3.9 Back
19
Qq 224-230 Back
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