The following questions Under the Freedom of Information (Scotland) Act 2002 (FOISA), I would like to request the following information concerning the procurement of vessels 801 and 802:
1. Please explain Transport Scotland’s rationale for seeking Ministerial approval to proceed to contracts on 8 October 2015, despite having received communications from CMAL of the associated risks of these contracts on 26 September 2015?
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.
On 8 October 2015, the CMAL Board approved the contract award to FMEL, subject to confirmation that Ministers were content with the Transport Scotland advice provided on the same date.
As the Audit Scotland report sets out, CMAL was concerned at progress of contract negotiations with FMEL – to the point that restarting the procurement process was put forward as an option by the Chair of CMAL, on 26 September 2015, if negotiations with FMEL did not reach a satisfactory outcome on mitigations for the absence of a full Builder’s Refund Guarantee.
Transport Scotland’s advice to Ministers of 8 October 2015 included the CMAL Chair’s note of 26 September – and noted that this had been drafted before the latest round of negotiations between CMAL and FMEL which agreed a number of mitigations in the absence of a full Builder’s Refund Guarantee that were sufficient to assuage those concerns.
Transport Scotland and CMAL ensured that Ministers were informed of, and accepting of, the risks associated with this contract.
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:
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.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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