Contract award to Ferguson Marine Engineering Ltd: EIR request
Information request and response under the Environmental Information (Scotland) Regulations 2004.
Information requested
Under the Freedom of Information (Scotland) Act 2002 (FOISA), I would like to request the following information concerning the briefing paper, Contract award to FMEL and the associated risks, which was emailed to Transport Scotland and the CMAL Board on 30 September 2015; and the email titled, CMAL contract award to Ferguson Shipyard – request for ministerial approval, sent 8 October 2015 at 18.24hrs:
1. Please identify specifically which Scottish Ministers and Scottish Government Directors were given sight of the paper, Contract award to FMEL and the associated risks, between 25th September 2015 to the 10th October 2015 inclusive and communicated that they were content for CMAL to proceed with the award of the contracts to FMEL.
2. Please confirm the process by which Scottish Ministers and/or their officials communicated to Transport Scotland officials that they were content for CMAL to proceed to contracts.
3. Please confirm which Scottish Ministers and/or their officials gave their approval to Transport Scotland officials to notify CMAL to proceed to contracts on 8-9 October 2015?
4. Please confirm if the Deputy First Minister and Cabinet Secretary for Finance, Constitution and Economy and his officials were made aware of the financial implications of the contracts, in particular clauses relating to the Builders Refund Guarantees, prior to their approval on 9 October 2015? Please also confirm if the Deputy First Minister and Cabinet Secretary for Finance, Constitution and Economy and his officials communicated their approval for Transport Scotland to notify CMAL to proceed to contracts?
5. Please provide all documents, briefings and communications which evidence Scottish Ministers and their officials providing their approval to proceed to contracts.
6. Please provide all documents, briefings and communications concerning the paper entitled, Contract award to FMEL and the associated risks, drafted by Scottish Ministers and their officials.
Response
Reasons for not providing redacted information are detailed in Annex B
The answers to your questions are as follows;
1. Please identify specifically which Scottish Ministers and Scottish Government Directors were given sight sight of the paper, Contract award to FMEL and the associated risks, between 25th September 2015 to the 10th October 2015 inclusive and communicated that they were content for CMAL to proceed with the award of the contracts to FMEL.
The paper “Contract award to FMEL and the associated risks” was attached to the Ministerial submission of 8 October 2015. The copy list is attached below:
From:
Sent: 08 October 2015 18:24
To: Minister for Transport and Islands
Cc: Cabinet Secretary for Infrastructure, Investment and Cities; DG Enterprise, Environment & Innovation PS/Transport Scotland; Middleton DF (David) ; Transport Scotland Directors ; Fairweather S (Sharon) @gov.scot>; @gov.scot>; @gov.scot>; @transportscotland.gsi.gov.uk>; @transportscotland.gsi.gov.uk>; @gov.scot>; @transportscotland.gsi.gov.uk>; @transportscotland.gsi.gov.uk>; @gov.scot>; @transportscotland.gsi.gov.uk>; @transportscotland.gsi.gov.uk>; @transportscotland.gsi.gov.uk>; Anderson A (Alexander) @gov.scot>; @transportscotland.gsi.gov.uk>
Subject: CMAL contract award to Ferguson shipyard - request for Ministerial approval
2. Please confirm the process by which Scottish Ministers and/or their officials communicated to Transport Scotland officials that they were content for CMAL to proceed to contracts.
The document titled “Ferguson Marine: ministerial response to 8 October 2015 submission” confirms Scottish Ministers agreed to proceed with offering Ferguson Marine Engineering Limited a contract for the building of new ferries in October 2015. This has been provided to Parliament and can be found on the Scottish Government website here. The same distribution list as above confirmed the decision. Further discussions by Ministers and officials can also be found in the attached link.
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.
3. Please confirm which Scottish Ministers and/or their officials gave their approval to Transport Scotland officials to notify CMAL to proceed to contracts on 8-9 October 2015?
As above.
Ministerial confirmation provided on 8 October facilitated the issuing of Transport Scotland confirmation for CMAL to proceed with the contract which was signed on 8 October 2015.
4. Please confirm if the Deputy First Minister and Cabinet Secretary for Finance, Constitution and Economy and his officials were made aware of the financial implications of the contracts, in particular clauses relating to the Builders Refund Guarantees, prior to their approval on 9 October 2015? Please also confirm if the Deputy First Minister and Cabinet Secretary for Finance, Constitution and Economy and his officials communicated their approval for Transport Scotland to notify CMAL to proceed to contracts?
Ministerial approval to allow the procurement process to proceed was given by the then Cabinet Secretary for Infrastructure, Investment & Cities, Keith Brown on 21 August 2015.
The documentation published on 11 May shows the decision to award the contract was quite properly taken by then Transport Minister Derek Mackay. This has been provided to Parliament and can be found on the Scottish Government website here.
The submission of 8 October 2015, published in 2019, which can be found at the below link, noted that the Deputy First Minister had approved the financial implications in his role as Finance Minister prior to the 31 August announcement of FMEL as preferred bidder.
https://www.gov.scot/collections/ferguson-marine-documents/
There is overlap between information requested in this request which has been provided to your last query and this is included in ANNEX A.
Ministers only became aware of the issue around the Builder’s Refund Guarantee after they had approved the appointment of FMEL as the preferred bidder on 21 August 2015.
The recently-published email exchanges of 9 October 2015, given in response to your second query, include the then Transport Minister’s response to the 8 October submission – and also set out that the Deputy First Minister spoke with officials after Mr Mackay’s approval earlier that day.
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.
5. Please provide all documents, briefings and communications which evidence Scottish Ministers and their officials providing their approval to proceed to contracts.
The document titled “Ferguson Marine: ministerial response to 8 October 2015 submission” confirms Scottish Ministers agreed to proceed with offering Ferguson Marine Engineering Limited a contract for the building of new ferries in October 2015. This has been provided to Parliament and can be found on the Scottish Government website here.
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/
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.
There is overlap between information requested in this request which has been provided to your last query and this is included in ANNEX A.
6. Please provide all documents, briefings and communications concerning the paper entitled, Contract award to FMEL and the associated risks, drafted by Scottish Ministers and their officials.
As above.
In scope information is attached in ANNEX A.
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.
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