Information on the £97m contract to build two CalMac ferries: EIR release

Information requested

1/ Who signed off on the 97M fixed price contract in the Scottish government?

2/ What due diligence was taken prior to the signing of the contract?

3/ Who made the decision to carry on with the project after they were told to put the contract back out to tender?

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.

We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

The answer to your questions are as follows;

1/ Who signed off on the 97M fixed price contract in the Scottish government?
Keith Brown confirmed FMEL as the preferred bidder on 21 August as per Caledonian Maritime Assets Limited’s (CMAL) recommendation and that the contract as agreed could be awarded. Derek MacKay, the then Minister for Transport and Islands announced the contract award on the same day as the contracts were signed on 16 October 2015. Tom Docherty, CEO, CMAL signed the contracts with Jim McColl on behalf of FMEL as CMAL was the procuring authority.

2/ What due diligence was taken prior to the signing of the contract?
The procurement in relation to vessels 801 and 802 was undertaken thoroughly, in good faith and following the appropriate due diligence. CMAL conducted due diligence in relation to all of the bids submitted and awarded the contract to, and signed the contract with FMEL, following ministerial approval. While CMAL did express concerns about the absence of a full refund guarantee, mitigations were agreed that were sufficient to assuage those concerns.

3/ Who made the decision to carry on with the project after they were told to put the contract back out to tender?
The contract was awarded by CMAL in its capacity as procuring authority following a robust procurement process. Transport Scotland and CMAL ensured that Ministers were informed of, and accepting of, the risks associated with this contract. Ministers provided some additional assurances sought by CMAL. These exchanges have been set out in the public record since 2019 and document the risks, mitigations and confirm Ministerial support.

The memos to Ministers in August and October 2015 regarding the contract award have been in the public domain since 2019 and can be found at the following link:
https://www.gov.scot/collections/ferguson-marine-documents/

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.