Problem Gambling Foundation of New Zealand v Attorney-General
[2015] NZHC 1701
•23 July 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-1219 [2015] NZHC 1701
BETWEEN PROBLEM GAMBLING FOUNDATION
OF NEW ZEALAND Plaintiff
AND
ATTORNEY-GENERAL Defendant
Hearing: 22, 23 and 24 September 2014 Appearances:
M Chen and A Van Houtte for the Plaintiff
M Andrews and S Shaw for the DefendantJudgment:
23 July 2015
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 23 July 2015 at 3 pm. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms M Chen and Ms K Broadhurst, Chen Palmer, Solicitors, Wellington
Ms A Boadita-Cormican and Ms S Shaw, Crown Law, Wellington
PROBLEM GAMBLING FOUNDATION OF NEW ZEALAND v ATTORNEY-GENERAL [2015] NZHC 1701 [23 July 2015]
TABLE OF CONTENTS
Para No.
Introduction [1] Outline of the Foundation’s claims and reformulation of the issues [6] Conclusion [10] Background [11] The current six year strategic plan and three year service plan [13]
The Request for Proposal [16] Receipt of proposals [18] The panel process [20] Distribution of evaluation packs [22] Evaluation process: stage 1– “pre-scoring” [27] Compilation of individual pre-scores by Mr Levy [29]
First panel meeting: preliminary discussion: conflicts of interest [31] Evaluation process: stage 2 – “consensus scoring” [32] Evaluation process: stage 3 – “moderation” [37] The outcome of the panel evaluation process [38]
Further steps by the Ministry leading to the final decision [39] Evidence [46] Issue 1: The scope of judicial review [54] Lab Tests [56] Application of Lab Tests: the scope of review: matters of context [65]
The statutory setting [66] The Mandatory Rules for Procurement by Departments [79] The nature of the decision [87] Nature of the body making the decision [91] Any relevant contractual provisions [93] Would “onerous procedural obligations” unduly fetter the
power of the public body to negotiate freely? [95] The complexity of the subject matter [102] What is alleged to have gone wrong? [106] The availability of “non-judicial accountability mechanisms” [108]
Conclusion as to the scope of review [110]
Issue 2: Adherence to the RFP: the mandatory rules: legitimate expectation Introduction [111] The mandatory rules [113] Legitimate expectation [118] Interpretation of the RFP [124] Issue 2(a): Deviation from the RFP: changes to the evaluation
criteria and weightings [128]
Appendix 1: the RFP: its most relevant provisions [133]
Requirements: Organisational strength and stability
requirements: 12.5% of total: 18% of quality [144]
Delivery: Ability to deliver the required Services:
15% of total: 21.45% of the quality [152]
Experience: Successful experience in delivery of similar
services: 7% of total: 10% of quality [157]
Capability: Capability of staff proposed to deliver the required
Services: 15% of total: 21.45% of quality [159]
Alignment: Alignment of Services with the health and
social service sector: 10% of total: 14.3% of quality [160]
Outputs and Outcomes: Performance and Quality measures
to ensure the quality of Services: 7.5% of total: 10.73% of quality [166]
Purchase Units: Ability to deliver all clinical and public health
services required in a region: 3% of total: 4% of quality [171]
Price: Ability to deliver a full range of required services across a region at a reasonable price per FTE: 30% of
total: 100% of price [173] The PwC Report [180] Conclusion on changed sub-criteria and weightings [185]
Issue 2(b): Deviation from the RFP: the moderation stage [186] Evidence on the moderation stage [187] Outline of submissions [192] Evaluation of issue 2(b): moderation [195]
Issue 2(c): Failure by the Ministry to contact the Foundation
about its lead agency proposal [204]
Issue 2(d): other complaints of breach of a legitimate expectation [212] Issue 3: Mistake of fact or lack of probative evidence [218] Legal principles [220]
The divergent positions of the Foundation and the Ministry
as to the nature of the evaluation process [228]
Conclusion on the nature of the evaluation process [245] Aspects of Mr Mullins’ evidence [253] The process was subject to significant “noise” [254]
Inter-rater variability: “aberrant scores” [258] Mr Mullins’ general conclusions [264] Conclusion [271]
Other complaints of the Foundation [275]
Issue 4: Conflicts of interest or bias
Introduction and legal principles [276]
Legal principles [278] Context: The rules about conflict of interest and bias in this case [287] Conflict declarations by panel members and management of conflicts [292] Other evidence [301]
Assessment
The standard to be met by the panel [313]
The two step preliminary analysis [323] Assessment as a fair-minded lay observer [325] Should the decision be set aside? [339] Result [342]
Appendix 1
Appendix 2
Introduction
[1] The Problem Gambling Foundation of New Zealand seeks judicial review of a decision of the Ministry of Health relating to provision of services to reduce problem gambling and treat problem gamblers.
[2] The Foundation is a charitable trust. It is a non-profit organisation which provides both public health and clinical problem gambling services. In broad terms, public health services are those designed to prevent or reduce the risk of problem gambling, and clinical services are those concerned with the treatment of problem gamblers. The Foundation has provided problem gambling services since 1988 and has been the largest service provider in New Zealand.
[3] Since 2004 the Ministry of Health has been the Government department with responsibility under the Gambling Act 2003 (the Act) for developing, managing and implementing an “integrated problem gambling strategy”.1
[4] In July 2013 the Ministry issued a Request for Proposal (RFP). This was for provision of services in 13 regions in New Zealand, and nationally, for a 30 month period commencing on 1 January 2014 and concluding on 30 June 2016.
[5] The Foundation submitted two proposals. One was to provide services, as the sole provider, in 9 of the 13 regions. The other was to provide national services in conjunction with another provider. In March 2014 the Ministry decided that no contract should be offered to the Foundation other than two small contracts for specialised Asian services in the Auckland and Canterbury/West Coast regions.
Outline of the Foundation’s claims and reformulation of the issues
[6] The Foundation filed an amended statement of claim shortly before the hearing commenced. Two causes of action were pleaded. The first was described as “mistake of fact/decision not supported by probative evidence”. The second was
described as “breach of natural justice/procedural expectation”. The pleading of
1 Gambling Act 2003, ss 317-318.
each cause of action provided detailed particulars of alleged errors in the decision making process and breaches of a legitimate procedural expectation.
[7] In the course of submissions the key issues were refined by Ms Chen for the Foundation. She submitted that there were seven key issues. Mr Andrews, for the Ministry, accepted Ms Chen’s summary. For reasons noted below, I consider that it is appropriate to consider the issues under four main headings, rather than seven, but because of the agreement between counsel, and to provide an indication of the way in which the case was argued, I will set out Ms Chen’s summary in full. It is as follows:
1.Can this Court review the Ministry’s decision on the purchase of regional / national services from specific providers, and if so, for what types of breaches?
2.Did the Ministry fail to adequately mitigate the impact of conflicts of interest of some of the panel members who participated in the Panel scoring process (which formed the basis for the Panel recommendations which are set out in the Panel recommendation memo that was largely adopted by Mr Bartling in making his decision), such that the Ministry’s decision was contaminated?
3.Did the Ministry breach [the Foundation’s] legitimate expectation that the Ministry would follow the RFP and not make material changes to the criteria for evaluating proposals without giving notification of the change and allowing [the Foundation] and all other providers the opportunity to modify their proposals?
4.Did the Ministry breach its voluntarily adopted Mandatory Rules of Procurement concerning conflicts and the notifying of material modifications to the scoring criteria such that it constitutes an error or law?
5.Whether the Ministry’s decision was not based on evidence of some probative value that tends logically to show the existence of facts consistent with the decision?
6. Was the decision based on material mistakes of fact?
7.Did the Ministry fail to take reasonable steps to acquaint itself with the relevant information in order to make a probative decision, including on [the Foundation’s] Lead Agency Proposal?
[8] I restate the main issues under four headings because there is a degree of overlap between some of the issues as outlined by Ms Chen. The overlap, in large measure, is in relation to matters of fact and assessing the issues under four headings
is a more convenient focus. There is also Ms Chen’s fourth issue relating to the Mandatory Rules of Procurement, which I will refer to as “the mandatory rules”. The mandatory rules were binding on the Ministry in respect of the RFP and the decision making of the Ministry that followed. The two categories of rules referred to in the summary of the fourth issue, concerning conflicts of interest and modifications to the scoring criteria, are directly relevant to the subject matter, if not the precise legal categorisation, of the second and fourth issues.
[9] The restatement, including a different sequence, is as follows:
(a) Issue 1. On what grounds, if any, can the decision be judicially reviewed? It was not disputed that, as a matter of principle, the decision is subject to the Court’s jurisdiction. The issue is the scope of review. This issue requires consideration of the Court of Appeal’s decision in Lab Tests Auckland Ltd v Auckland District Health Board.2
(b)Issue 2. This corresponds to the third issue in Ms Chen’s summary, and part of the fourth: Did the Ministry fail to follow evaluation processes and criteria set out in, or indicated by, the RFP and, if so, did it breach the mandatory rules, or a legitimate expectation of the Foundation, that in the absence of notification and an opportunity to respond, those processes would be adhered to?
(c) Issue 3. This corresponds to issues 5 to 7 in Ms Chen’s summary. The Ministry used a panel of six people to evaluate proposals with a seventh person who chaired the panel. The panel’s decision making was sequential, with provisional conclusions reached at various stages. The essence of issue 3 is whether there were material errors in conclusions reached at various stages, such that the Ministry’s final decision was not the result of logical and reliable decision making. The main thrust of the Foundation’s evidence and submissions, to be considered under
this heading, is that in various ways the panel’s evaluation methodology
2 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR
776.
was flawed, and flawed to an extent which makes results at various stages unreliable, so that the final decision is unreliable.
(d)Issue 4. This corresponds to Ms Chen’s second issue, but incorporating issues relating to the mandatory rules. The broad issue is whether the decision should be set aside because of apparent bias, or apparent conflicts of interest, of panel members, or the panel as a whole. The mandatory rules include rules relating to conflicts of interest.
Conclusion
[10] I have concluded that the decision in this case is one which may be subject to the full scope of judicial review so that the Foundation is entitled to advance the grounds contained in issues 2, 3 and 4. I have further concluded that, on all three issues the Foundation has established grounds to set the decision aside and that the decision should be set aside. My reasons follow.
Background
[11] Under s 317 of the Act, the Government has allocated responsibility for an integrated problem gambling strategy to the Ministry. The strategy must address four matters specified in s 317(2). Those of relevance in this case are: (a) measures to promote public health by preventing and minimising the harm from gambling; and (b) services to treat and assist problem gamblers and their families and whānau. Those two types of service were referred to in the RFP, and in the course of these proceedings, as “public health” and “clinical” services.
[12] The Ministry is required to develop the strategy in consultation with, amongst others, representatives of organisations involved in providing various gambling facilities and representatives of providers of problem gambling services. A proposed strategy is then submitted to the Gambling Commission and the responsible
Ministers.3 In order to fund the strategy, the Government can charge gambling
operators a levy.4 The Act does not prescribe how the strategy is to be delivered.
3 Section 318.
4 Section 319.
The Ministry may do so itself or, as is its practice, contract other providers. The statutory provisions are discussed more fully when considering issue 1.
The current six year strategic plan and three year service plan
[13] To comply with its statutory obligations the Ministry adopts a six-year strategic plan and two three year service plans. The current six year strategic plan is for the years 2010 to 2016. This was finalised in 2010 after an extensive consultation process. The Foundation participated in this. The first of the three year service plans was also finalised in 2010 following extensive consultation.
[14] The second three year service plan, for the years 2013 to 2016, is the one which led to the RFP and to the decision now challenged (the 2013-2016 service plan). The Ministry convened meetings on the initial consultation document for the current service plan. The Foundation attended several of those meetings and made submissions.
[15] The 2013-2016 service plan was approved by the Cabinet on 15 April 2013. It was published on the Ministry’s website on 23 May 2013. It contains the following statement in a section dealing with public health:
The Ministry currently contracts 20 service providers to deliver primary prevention services for any combination of the public health service specifications. Based on current service delivery and the regular monitoring of service providers, the Ministry considers it advisable to broadly maintain its current arrangements with public health service providers for the time being. Minor amendments might be made where the 2012 needs assessment, modelling and achievement of service delivery targets suggest they are appropriate.
The Request for Proposal
[16] On 24 July 2013 the Ministry issued the RFP which led to the process with which this proceeding is concerned. This was a request for proposals to provide services for a 30 month period from 1 January 2014 to 30 June 2016. This was a new process for selecting organisations to be offered contracts to provide public health and clinical problem gambling services. The RFP was not a process contract; that is to say, it did not give rise to any contractual rights or obligations.
[17] The RFP recorded eight principal criteria against which proposals would be evaluated. Each criterion was given a weighting. This was recorded as a percentage of the total for all eight criteria. Sub-criteria were specified in respect of each of the main criteria. Some of the Foundation’s claims, and the Ministry’s responses, require detailed consideration of those parts of the RFP relating to the evaluation process. Because of the need for this detailed scrutiny, the most relevant parts of the
RFP have been reproduced as appendix 1 to this judgment.5 There is a discussion of
the most relevant parts of the RFP later in this judgment, when dealing with issue 2.
Receipt of proposals
[18] Submitters were given seven weeks to complete their proposals. The due date was 11 September 2013. The Ministry managed the RFP using an online system known as GETS. It received questions about the RFP, and it posted its answers online for all submitters to see. The Ministry received 32 proposals in 86 “service mix configurations”. Some proposals were immediately excluded for failing to comply with the RFP timetable.
[19] The Foundation submitted two proposals. Both were accepted for evaluation. One, referred to as “the standalone proposal”, was to provide services, as the sole provider, in nine of 13 regions. The proposal was to provide all services required in each of the nine regions apart from Kaupapa Māori services. The second proposal, described as “the lead agency proposal”, was to provide all services nationally in conjunction with another service provider, Hapai te Hauora Tapui Ltd.
The panel process
[20] Mr Natuitasina Levy was appointed chair of the Ministry’s evaluation panel. At the time Mr Levy was a senior contract manager in the Gambling Harm Minimisation Team at the Ministry. Mr Levy’s role was described as “the non- scoring” chair of the panel. The remaining six members were “scoring members”.
The composition of the panel was not finalised until 12 September 2013. This was
5 These parts of the RFP have been reproduced digitally. As a result the page numbers of the reproduced parts differ from the original page numbers. The first page of appendix 1 has a footnote numbered 68. This was in the original document as footnote 1.
the first scheduled date, as recorded in the RFP, for review and consideration of proposals.
[21] There were three main decision making stages in the panel’s evaluation, resulting in a recommendation to the Ministry officer responsible for making the final decision, Mr Rodney Bartling. Although Mr Bartling was the responsible officer, the Ministry accepts that, if there were material errors in respect of the three broad categories of breach as alleged by the Foundation, these were not cured by the fact that the formal decision was made by Mr Bartling. The three decision making stages of the panel were described as “pre-scoring” (stage 1), “consensus scoring” (stage 2) and “moderation” (stage 3). There were also some preliminary steps and other relevant actions between the stages. The three stages, and the other steps, are described in the following paragraphs under appropriate subheadings.
Distribution of evaluation packs
[22] On 13 September 2013 each of the scoring panel members was provided with an “evaluation pack”. The evaluation pack included a seven page explanatory document. Panel members were advised that the evaluation pack contained the information they needed to evaluate the proposals. Panel members were given seven further documents, which included the RFP. Several of these other documents were to be used by each panel member to score each proposal by reference to the eight principal criteria and weightings set out in the RFP. Panel members were also provided with electronic spreadsheets to be used for scoring each of the proposals.
[23] There were detailed instructions about scoring. Reference was made to a document described as “Summary of Individual Question Weightings”. The most relevant part of this document has been reproduced as appendix 2 to this judgment. I will refer to this as “appendix 2”. As may be seen, the left hand column records eight criteria and the next column records weightings for each of those criteria. The criteria (apart from abbreviations) and weightings are the same as those recorded in the RFP. Aspects of this document are discussed more fully when considering issue 2.
[24] The introduction to the evaluation pack, after reference to appendix 2, set out the detailed instructions to the panel members as to how they were to proceed with scoring each proposal. The instructions were reasonably prescriptive. They included the following:
h There are 8 key criteria groupings: …
i The sum of the 8 criteria groupings total 100%.
j Within each criteria grouping there are between 1 and 10 questions.
Each question under a criteria group has a sub-weighting. Sub- weightings for each criteria group total 100%.
kThe weighting information is provided for your reference. It cannot be adjusted.
lThe summary of individual question weightings lists the relevant question(s) to be considered within each proposal to assess a score. Please refer to the sheet to assist your assessment.
mPlease also refer to the Scoring System sheet when completing your assessments. Scores are to be completed out of 10. A description of how questions should be assessed is provided on this sheet. Note that odd numbers and half marks are not acceptable.
…
[25] The Scoring System sheet referred to in paragraph m was as follows:
Scoring System
The scoring system to be used to score each of the tenders is set out below:
Scoring
(out of10)
Response Description 10 Fully answers the question, exceeds requirements and tangible additional benefits achievable Excellent 8 Fully answers the question, meets requirements Superior 6 Mostly meets requirements; or will meet requirements with some further work Good 4 Will only meet requirements with extensive further work Poor 2 General assertions without substance, or is too vague to be meaningfully interpreted Very Poor 0 No response or extremely poor Unacceptable Odd numbers and half-marks are not acceptable.
[26] There were instructions in relation to confidentiality and conflicts of interest. Panel members were asked to complete a conflict of interest declaration, with instructions that any declared conflicts, actual or potential, were to be made known to the panel for its consideration. Five of the seven panel members declared actual or potential conflicts of interest or bias. Particulars in that regard are outlined when dealing with issue 4.
Evaluation process: stage 1 – “pre-scoring”
[27] Equipped with the evaluation pack, and the electronic provider RFP evaluation tools for each proposal, the panel members proceeded individually to score each proposal in accordance with the instructions given. For this purpose the explanatory note included the following instructions and advice:
sWhere possible, it is strongly recommended that panel members assess all proposals per region in a single sitting to increase consistency of scoring without any external third party influence.
tPlease read through ALL proposals as this will assist with the evaluation process and to take note of any particular:
§ relative strengths and weaknesses
§ any further questions you would like to ask the proposer
§ do not discuss your opinions with other panel members before the meeting
[28] Each panel member then sent their pre-score assessments to Mr Levy.
Compilation of individual pre-scores by Mr Levy
[29] In preparation for the first meeting, Mr Levy copied the individual pre-scores for each proposal into a comprehensive spreadsheet. In this process there was an automatic calculation of what was described as the “average score” for each proposal, with the result described as a “raw score”, in respect of each criterion.
[30] Some of the panel members did not record any score for some proposals or for some criteria. In some instances the panel member made no entry at all in the relevant part of the electronic spreadsheet; that is to say, it was left blank. In other instances text was entered, such as “N/A” or “did not score”. In evidence and
submissions these were referred to as “missing values” and the treatment of them by Mr Levy was one matter in issue. The Foundation in its evidence identified 340 missing values. The Ministry accepted that there were in fact 347 missing values. Mr Levy’s evidence was that “in almost all cases” he entered zeroes for missing values and electronically highlighted these zeroes with various colours. Mr Levy said that in two instances he corrected what he considered were “obvious typographical errors” where one of the panel members had entered a score of 88 out of 10. Mr Levy changed these scores, which related to a sub-criterion, to 8 out of 10.
First panel meeting: preliminary discussion: conflicts of interest
[31] The first panel meeting was delayed to 30 September 2013. At the start of the meeting Mr Levy reviewed each panel member’s conflict of interest and confidentiality form. When a conflict of interest, or potential bias, was declared, Mr Levy discussed the matter with the individual member and both signed the Ministry’s conflict form. The matter was also discussed with the panel. Mr Levy’s own declaration was reviewed by Mr Bartling. The detail is noted when considering issue 4.
Evaluation process: stage 2 – “consensus scoring”
[32] After dealing with conflicts of interest and other matters described in the agenda as “Procedural” (and for which 10 minutes had been allocated in the indicative agenda), the panel moved to the second stage of the evaluation, described by Mr Levy as “consensus scoring”. This began with Mr Levy’s projecting onto a screen the spreadsheet master files for each region. As he said in his affidavit, this meant that each of the panel members could see the raw scores of every panel member, for each proposal, on each criterion, and could see the average of the raw scores, for each proposal, on each criterion.
[33] A preliminary step at this point was to deal with the zero entries Mr Levy had made for missing values. The broad thrust of the evidence is that all of these zero entries, other than some in pre-scoring by one panel member, Mr Pereira, were altered following what Mr Levy described as a “discussion with the relevant Panel member”. The zero score was changed to the score agreed in this discussion. There
were zero entries in Mr Pereira’s pre-score for a proposal from Raukura Pacific. Zero entries were made for Raukura Pacific’s proposal because of a declared conflict of interest and an arrangement that Mr Pereira should not score the Raukura Pacific proposal. No adjustment was made to these zero entries and no adjustment was made to the average of the scoring by all panel members, which included Mr Pereira’s zero scores.
[34] There was a good deal of evidence on the consensus scoring process, but very little in the way of contemporaneous and detailed minutes of discussions. A substantial body of the evidence is expert opinion evidence for the Foundation, and opinions in response for the Ministry, on aspects of this process. The essence of consensus scoring was that the panel as a whole agreed on single scores for the criteria for each proposal. The panel came to an overall view of what the appropriate score for each proposal should be. This meant that some panel members changed their scores. As Mr Levy noted, there were some substantial differences between panel members in their pre-scoring. He said that in his experience “this is usual”. There is expert evidence for the Foundation from a statistician, Mr Peter Mullins, to the effect that substantial differences are most unusual. This is discussed in issue 3.
[35] Mr Levy said that an important objective of the evaluation was to confine assessments to the information contained in the proposals. He said:
64.Panel members agreed at the outset of the Consensus scoring stage that my role as the non-scoring Chair of the Panel was to facilitate the process, ensuring that any discussion referred back to information actually in the proposal concerned. This is a standard approach in procurement processes.
65.The reason for this is that an important objective of contestable processes like this RFP is to ensure, as much as possible, a level playing field for all respondents. The RFP attracted proposals primarily from incumbents like the plaintiff and the Salvation Army, but also from providers which the Ministry had not previously contracted with in this sector. Evaluating proposals by reference to the evidence respondents put forward in their proposals, rather than by reference to other factors such as external knowledge of their historical performance, is a mechanism used to ensure that incumbency is not favoured and in effect given weight beyond that provided for in the weighted criteria.
[36] Mr Levy noted in his evidence that he did make some errors in producing the consensus score spreadsheets. He said that all but one of these were trivial and, in his opinion, none disadvantaged the Foundation.
Evaluation process: stage 3 – “moderation”
[37] The third, and final, stage of the panel’s assessment was described as “moderation”. This stage was the subject of extensive criticism by expert witnesses for the Foundation. It is a stage in the evaluation process – the decision making by the panel – that is considered when dealing with issue 2, although it has relevance in a different way to issue 3. Some of the evidence relating to the moderation stage is set out in the section dealing with issue 2. It is sufficient at this point to record Mr Levy’s description of it as a “collective view” by the panel in which it “looked beyond the terms of the proposals”. The scores of each proposal, as recorded at the end of the consensus scoring stage, were not altered, but rankings were altered.
The outcome of the panel evaluation process
[38] The outcome of the panel process was recommendations to Mr Bartling. The Foundation’s proposals were rejected, essentially in their entirety. The panel recommended that the Foundation have only a limited secondary role in Gisborne and Canterbury. On 19 October 2013, Mr Levy emailed a memorandum containing the panel’s draft recommendations (the recommendation memorandum) to panel members for their approval.
Further steps by the Ministry leading to the final decision
[39] On 23 October 2013 Mr Levy orally briefed Mr Bartling on the panel’s recommendations. Mr Bartling said, in effect, that he recognised the implications for the Foundation because the Ministry, since 2004, had been purchasing “a significant volume” of services from the Foundation and he knew that the Foundation had a “significant profile before 2004”. He said that if he accepted the recommendations that “could bring about significant change within the sector”. Mr Bartling sought assurances that the recommendations were a true reflection of the panel’s consensus
and that the conflicts of interest were adequately managed. Mr Levy confirmed both matters.
[40] Notwithstanding Mr Levy’s assurances, Mr Bartling decided to seek what he described as “additional reassurance that the process met good practice standards for government procurement processes”. This was because he knew that the Foundation was the largest provider of problem gambling services, in terms of FTEs (full time equivalents), and with a service delivery presence in most regions in New Zealand. He therefore recognised the implications for the Foundation. Mr Bartling said he sought advice from the Ministry’s procurement team about the robustment of the process that had been followed. He did not say what that advice was, but following this Mr Bartling decided that it was appropriate to procure an external review. This led to the appointment, in early November 2013, of PricewaterhouseCoopers (PwC) to provide an independent retrospective “probity report” on the RFP process. At about the same time the Ministry extended the existing contracts to give PwC sufficient time to complete its review.
[41] PwC began its enquiry on or about 14 November. Approximately six days later PwC advised the Ministry that the panel’s recommendation memorandum, earlier sent by Mr Levy to Mr Bartling, required amendment to describe the moderation process more fully. This resulted in the addition of what became appendix 7 to the recommendation memorandum. Relevant detail in this regard is noted in the discussion of issue 2. PwC issued a draft report on 29 November 2013.
[42] A final panel recommendation memorandum was sent to Mr Bartling on
31 January 2014.
[43] On 13 March 2014 PwC, having received some further amended documents from Mr Levy, provided its final probity report. Some aspects of the report are noted later in this judgment. In its draft report, PwC had noted some “exceptions”. The essence of the final report was that there were no exceptions remaining in relation to the panel’s evaluation processes, but there was an observation about perceptions of conflict of interest which will be noted when dealing with issue 4.
[44] Mr Bartling’s final decision was made on 13 March. It was consistent with the panel’s recommendations apart from some minor variations.
[45] There were meetings between Ministry representatives and representatives of the Foundation on 20 and 28 March 2014. There is some conflict in the evidence between Foundation witnesses and Ministry witnesses as to what was said, in particular in relation to the Foundation’s lead agency proposal. It is unnecessary to summarise those matters at this point. The Ministry did seek to negotiate with the Foundation to secure it as a provider of Asian services, something that had not been recommended by the panel. This had not been pursued by the Foundation in any material way when, in May 2014, it advised its intention to seek judicial review. The Ministry then extended existing contracts pending determination of the proceeding.
Evidence
[46] In the usual way, on applications for judicial review, the main sources of evidence were the documentary record and affidavits for the parties. The documentary record was in 17 volumes and just short of 5,000 pages. There was affidavit evidence from nine witnesses, five for the Foundation and four for the Ministry.
[47] The Ministry challenged the admissibility of some evidence given by each of the Foundation’s witnesses. I have been able to reach a conclusion in favour of the Foundation without having regard to any of the evidence in issue. For that reason it is unnecessary to discuss the issues, but I record that a number of objections were well founded.
[48] There was one witness of primary fact for the Foundation, its Chief Executive Officer, Mr Graeme Ramsey. He provided relevant background evidence relating to the Foundation’s substantial and successful involvement in the provision of public health and clinical problem gambling services from the establishment of the Foundation in 1988. He provided further evidence of the Foundation’s dealings with the Ministry, and specifically dealings relating to the RFP.
[49] The remaining four witnesses for the Foundation gave evidence principally, or entirely, as expert witnesses. The evidence of one of the expert witnesses, Mr Peter Mullins, has been central to my conclusions on issue 3, and of some significance for issue 4. The reasons for this are recorded when considering the issues. Mr Mullins has expertise as a statistician. His expertise was not challenged and for that reason it is unnecessary to record details, other than to note that his experience has been acquired over some 40 years, both as an academic and as a consultant statistician.
[50] A second expert witness for the Foundation, whose evidence has been of assistance to me in respect of some issues, is Dr Denis Jury. Dr Jury’s most relevant expertise is in the design and management of competitive purchasing processes, including tenders and requests for proposals, for public bodies. He has a Doctorate in Biochemistry and a Master of Business Administration, with other science qualifications. He worked as a scientist from 1977 to 1993, when he moved into health management. He had extensive experience in different roles in health management in the Waikato from 1993 to, it appears, 1999. In 2003 Dr Jury joined the Auckland District Health Board as the General Manager of Planning and Strategy, reporting to the Chief Planning and Funding Officer. He became Chief Planning and Funding Officer in February 2004 and reported to the Chief Executive. He was responsible for health funding and planning for the Auckland District Health Board with an annual revenue of around $1.9 billion. Approximately $600 million of that was used for contracting services with non-governmental organisations and private health service providers. There was a significant number of contracts which ranged in size from less than $100,000 to in excess of $70 million and which were subject to tender and assessment processes. Dr Jury was the Chief Planning and Funding Officer until 2014.
[51] The remaining witnesses for the Foundation were Dr Peter Adams and Dr Charles Livingstone. Both have expertise in matters relating to problem gambling, but their admissible evidence has generally not been relevant to the issues I have identified as the issues requiring assessment.
[52] Three of the four witnesses for the Ministry were Ministry officers, two of whom have already been referred to:
(a) Mr Levy, the Senior Procurement Advisor in the Office of the Deputy General, Sector Capability and Implementation Business Unit (SCI) at the Ministry. As noted above, he was the Senior Contract Manager in the Gambling Harm Minimisation Team during the panel process.
(b)Mr Bartling, the Group Manager of Mental Health Service Improvement, Sector Capability and Implementation at the Ministry. As noted above, he held delegated authority to make the final decision in the RFP process.
(c) Mr Derek Thompson. Mr Thompson was Team Leader of the
Gambling Harm Minimisation Team.
[53] For the Ministry there was also an affidavit from Mr Andrew Wotton, the partner at PwC who runs the Risk Assessment Team responsible for probity work. Mr Wotton’s evidence was not relevant to any matter of consequence. In particular, he did not provide any direct evidence on the substance of the conclusions in the PwC report. Rather, in a very short affidavit, he responded first to a single statement of Mr Mullins – that PwC had inspected PDF files rather than the raw data. Mr Wotton said that this was factually inaccurate because PwC “relied on the actual spreadsheets and other documents in their native formats”. Mr Wotton also rejected an opinion of Dr Jury that there was more discussion between PwC and officers of the Ministry, as to the content and wording of the probity report, than would ordinarily be expected and that this called into question the independence of the audit. Mr Wotton rejected Dr Jury’s opinion. I accept what Mr Wotton said on this point, but what Dr Jury said did not have any bearing on my assessment of the PwC report in respect of the matters I have to determine.
Issue 1: The scope of judicial review
[54] The Ministry, relying on the Court of Appeal’s decision in Lab Tests,6 submitted that the decision is not reviewable on any of the grounds advanced by the Foundation apart from the allegations of apparent bias or conflicts of interest.
[55] The Foundation submitted that the Court of Appeal’s decision in Lab Tests is distinguishable because the context of the present decision is materially different from the context in which the decision in Lab Tests was made.
Lab Tests
[56] Lab Tests concerned a request for proposals by three District Health Boards for the provision of community laboratory services. There were proposals from two companies, Diagnostic Medlab, the incumbent sole provider, and Lab Tests. Lab Tests won the contract and Diagnostic Medlab challenged the process on an application for judicial review. Diagnostic Medlab succeeded in the High Court.7
Asher J held that there had been errors in the decision making process arising from
two matters: a conflict of interest, and unfairness in respect of access to confidential information. The Judge said that the District Health Boards had a public law duty “to conduct public affairs with probity”.8 He concluded that determining whether there were conflicts of interest, or misuse of inside information, justifying relief, was not confined to consideration of compliance with relevant statutory procedures in that regard, but extended to assessment of compliance with public law obligations.
[57] Lab Tests succeeded on an appeal to the Court of Appeal. The Court of Appeal applied decisions of the Privy Council in Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd9 and Pratt Contractors Ltd v Transit New Zealand.10 The Court said that neither of those decisions supported the broad-based
“probity in public decision-making approach”.11 The Court held that, on application
6 Lab Tests Auckland Ltd v Auckland District Health Board, above n 2.
7 Diagnostic Medlab Ltd v Auckland District Health Board [2007] 2 NZLR 832 (HC).
8 At [160].
9 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
10 Pratt Contractors Ltd v Transit New Zealand [2003] UKPC 83, [2005] 2 NZLR 433 (PC).
11 Lab Tests Auckland Ltd v Auckland District Health Board, above n 2, at [85].
of statutory provisions concerning conflicts of interest and use of confidential information to the facts, there were no breaches.
[58] The principal judgment was that of Arnold and Ellen France JJ, delivered by Arnold J. There was a concurring judgment of Hammond J. Arnold J, following references to leading cases, said there were four relevant points to be derived from the authorities:
[56] First, where a public body is involved in a commercial process, in this case seeking tenders and awarding a contract, that body must exercise its contracting power in accordance with its empowering statute, if there is one. Here the ARDHBs must (at least) comply with the requirements of s 25. If they do not, their contracting decision is susceptible to judicial review on the ground of illegality. None of the parties before us disputed this.
[57] Second, the procedural obligations of a body performing a public function will vary with context. So, a public body exercising a particular statutory power may be bound by natural justice obligations, but such obligations may have less, or even no, relevance to the same body when making another type of decision under statute.
[58] Third, “context” for these purposes includes the nature of the decision being made, the nature of the body making the decision and the statutory setting within which the decision is made. In the present case, the statutory provisions dealing with confidential information and conflict of interest assume critical importance.
[59] Fourth, the Privy Council's decision in Mercury Energy indicates that the courts will intervene by way of judicial review in relation to contracting decisions made by public bodies in a commercial context in limited circumstances, although that is subject to the point about context just made. Generally other accountability mechanisms (such as ministerial control and parliamentary oversight) are likely to be seen as more appropriate. …
(emphasis added)
[59] In my judgment, the words given emphasis are pivotal. I will come back to this point shortly. In respect of the first part of the statement, referring to a limit on the scope of judicial review, Arnold J added, later in the judgment:12
Clearly, judicial review will be available where there is fraud, corruption or bad faith. Further, we accept, as a matter of principle, that it may be available in analogous situations, such as where an insider with significant inside information and a conflict of interest has used that information to further his or her interests and to disadvantage his or her rivals in a tender. In
12 At [91].
such a case, it may be that the integrity of the contracting process has been undermined in the same way as in the case of corruption, fraud or bad faith.
[60] The statement of the Privy Council in Mercury Energy was as follows:13
It does not seem likely that a decision by a state-owned enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.
[61] That broad and largely unqualified statement was qualified by the Court of Appeal in two respects. First, its terms have been expanded to “analogous situations”. Second, the Court stated as a matter of principle that whether the scope of review is limited to fraud, corruption, bad faith and analogous situations depends on the context.
[62] In my respectful opinion the Court’s emphasis on context was necessary for two reasons. First, if there could never be judicial review of contracting decisions made in a commercial context, that would be likely to exclude review in situations where well established principles would otherwise require it. Second, the reference to “contracting decisions” and “commercial context” could be difficult to apply without further definition.
[63] Further, in my judgment the Court, in its reference to Mercury Energy, was not stating what might be described as a prima facie rule “subject to context”. The starting point is context. With context as the starting point, it may be that certain types of decision are so plainly founded on existing contractual arrangements that there is no scope for the application of broader public law procedural standards. This is illustrated by the Privy Council’s decision in Pratt Contractors, where there were no public law causes of action, as well as the Mercury Energy decision, which
involved both contractual and public law causes of action.
13 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd, above n 9, at 391.
[64] Counsel referred to a number of cases which discuss the Lab Tests decision.14
It is unnecessary to discuss these cases except to the extent noted in the next section.
Application of Lab Tests: the scope of review: matters of context
[65] The discussion which follows takes account of submissions for the Foundation and the Ministry which were directed to a number of matters of context. The discussion is under subheadings identifying matters of context on which submissions were made and some others I consider relevant. It is to be noted that in Lab Tests the Court did not confine context to the three matters recorded at [58], and subsequent cases have addressed other matters of context. Although there are the separate headings, a number of these matters of context overlap.
The statutory setting
[66] The statutory setting was at the forefront of Ms Chen’s submissions. The only legislation that is relevant is the provisions of the Act directed to problem gambling. These are contained principally in Subpart 4 of Part 4 of the Act. The heading to Subpart 4 is “Problem gambling levy” but the provisions go much further than the heading indicates.
[67] One of the purposes of the Act, stated in s 3, is to prevent and minimise the harm caused by gambling, including problem gambling. Harm is defined in s 4 as follows:
harm —
(a) means harm or distress of any kind arising from, or caused or exacerbated by, a person's gambling; and
(b) includes personal, social, or economic harm suffered—
14 Jones v Waitakere City HC Auckland CIV-2010-404-2338, 29 October 2010; Te Tai Tokerau
Mapo Trust v Chief Executive of Ministry of Health HC Whangarei CIV-2010-488-307, 5 August
2011; Te Whanau o Waipareira Trust v Attorney-General [2012] NZHC 3107; Healthcare of New Zealand Ltd v Capital and Coast DHB [2012] NZHC 3417; Telco Technology Services Ltd v Ministry of Education [2014] NZHC 213; Mary Moodie Family Trust v Attorney-General [2015] NZHC 365, [2015] NZAR 379. Those cases, other than Jones and Healthcare, are noted in a recent and interesting paper by Professor Janet McLean discussing the test as formulated in Lab Tests, entitled Possibilities for convergence between public and private law, a paper delivered to the New Zealand Higher Courts’ Judges’ conference on 20 March 2015.
(i) by the person; or
(ii) the person's spouse, civil union partner, de facto partner, family, whanau, or wider community; or
(iii) in the workplace; or
(iv) by society at large
[68] Problem gambling is not defined, but a problem gambler is defined as “a person whose gambling causes harm or may cause harm”.
[69] The most relevant provisions of Subpart 4 are ss 317 and 318. Section 317(1) provides that the Government may allocate responsibility for an integrated problem gambling strategy to a department which need not be the department responsible for the Act as a whole. As earlier noted, since 2004 the Ministry has had responsibility for an integrated problem gambling strategy. Also as earlier noted, s 317(2) provides, so far as relevant in this proceeding, that an integrated problem gambling strategy must make provision for two matters: measures to promote public health by preventing and minimising the harm from gambling (public health services); and services to treat and assist problem gamblers and their families and whānau (clinical services).
[70] The Foundation, in its evidence and submissions, placed emphasis on the distinction between public health services and clinical services. The nature of the distinction, and the broad scope of public health services, is borne out and made clear in some of the expert evidence for the Foundation. The broad scope of public health services, in itself, at least in terms of the relevant statutory background, is a point of distinction between the statutory setting in this case and that in numbers of other cases, including Lab Tests.
[71] Section 318 contains provision for development of the integrated problem gambling strategy, including estimates of costs for a levy imposed under the Act on the gambling industry to recover the cost of implementation of the strategy. Section
318(1) and (2) are as follows:
(1) The department that has responsibility for implementing the problem gambling strategy must do the following things in developing the strategy:
(a) undertake a needs assessment; and
(b) prepare a strategy in draft; and
(c) develop costings for the draft strategy; and
(d) in the case of the initial levy period, estimate the costs of the department that has responsibility for the integrated problem gambling strategy during the transition to the strategy in the period before the introduction of the initial levy; and
(e) take into account any under-recovery or over-recovery of levy (gambling sector by gambling sector) in previous levy periods; and
(f) estimate annual funding requirements for the strategy for a 3- year period; and
(g) estimate, using the formula set out in section 320, levy rates for each gambling sector liable to pay the levy; and
(h) consult on the matters outlined in paragraphs (a) to (g) with—
(i) at least 1 representative of corporate societies licensed to operate gaming machines in commercial venues; and
(ii) at least 1 representative of corporate societies licensed to operate gaming machines in non-commercial venues; and
(iii) at least 1 representative of casino licence holders; and
(iv) the New Zealand Racing Board; and
(v) the New Zealand Lotteries Commission; and
(vi) representatives of the providers of problem gambling services; and
(vii) any other groups it believes are likely to be affected significantly by the proposed strategy.
(2) The department responsible for the integrated problem gambling strategy must then submit the proposed strategy and the proposed levy rates to the Gambling Commission and the responsible Ministers.
[72] The remaining provisions in s 318 are concerned with steps to be taken by the Gambling Commission in order to make recommendations to the responsible Ministers on the strategy and the levy. The Gambling Commission is required to convene a meeting. At least one representative of providers of problem gambling services, as well as Ministry representatives, and representatives of gambling operators, must be requested to attend the meeting. Section 319(2) provides that the
purpose of the levy is to recover the cost of developing, managing and delivering the strategy.
[73] Ms Chen submitted that the Ministry’s decision was made in the context of a “prescriptive statutory legislative framework”, and that the Ministry is statutorily required to select providers of problem gambling services. She further submitted that the proper application of funds recovered from the problem gambling levy is a matter over which judicial scrutiny has been applied, so that judicial review of a broad nature is available in this case. She referred to Clubs New Zealand Inc v
Minster of Internal Affairs.15
[74] I do not agree that the RFP process through to the decision under review involved the exercise of a statutory power of decision, at least in a strict sense, but that is not determinative.16 I also agree with Mr Andrews’ submission for the Ministry that the decision in Clubs New Zealand Inc is not on point.
[75] The provisions of the Act I have referred to are nevertheless relevant in two respects. The first is that, although the Act does not prescribe the way in which the Ministry, as the responsible department, should implement the strategy, the nature of what it is required to implement is important. This point is of direct relevance to another matter of context – the nature of the decision. This is discussed below, but it is convenient to record my conclusion at this point, as it flows from the statutory setting. What the Ministry is required to do is give effect to the entire legislative directive that there be a problem gambling strategy, which is concerned with all health aspects of problem gambling; the public health aspects as well as the clinical aspects. The Ministry was implementing a national strategy concerned with all health aspects – prevention through to treatment – of problem gambling. And, as the strategic plan indicated, there was need for the public health aspects of problem gambling to be aligned with other areas of public health. These matters moved the case a considerable distance from the type of service in issue in Lab Tests and some
– perhaps all – of the other cases.
15 Clubs New Zealand Inc v Minister of Internal Affairs [2014] NZHC 679.
16 See Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 12.
[76] The second reason why the statutory provisions are relevant arises from the absence of prescriptive provisions as to how the strategy is to be implemented. This is an important point of distinction between the present statutory setting and that with which the courts were concerned in Lab Tests. This point was addressed by Collins J in Telco Technology Services Ltd v Ministry of Education.17 That was a decision on an application for an interim injunction and the Court was therefore not required to make a final decision, but to determine, amongst other things, whether there was a serious question to be tried in relation to the substantive application for
judicial review. The case concerned an RFP issued by the Ministry of Education for delivery of information, communications and technology services to schools. The Ministry of Education, citing Lab Tests, argued that there was not a serious question to be tried on the application for judicial review. On the question of the statutory context the Judge said:
[37] In the present case, there is no obvious statutory framework which regulated the way the Ministry was to conduct the tender process. The legislative provisions cited in submissions were s 4 of the Public Finance Act
1984, s 34 of the State Sector Act 1988 and the Education Act 1989. However, those legislative provisions are of a general nature and did not specifically govern the process followed by the Ministry in this case. Accordingly, the vacuum created by an absence of specific legislative provisions may be filled by public law principles such as natural justice and procedural fairness.
[77] As with the Telco Technology case, there is a contrast between the absence in this case of statutory provisions requiring the Ministry to act in various ways which might be described as commercial, and the provisions that applied in Lab Tests as to the commercial way in which District Health Boards were required to operate.18 The contrast is more marked if the comparison is with the statutory provision in the Mercury Energy case. The statutory commercial imperative in s 4 of the State- Owned Enterprises Act 1986 required the electricity corporation “to operate as a
successful business and … to be … as profitable and efficient as comparable businesses that are not owned by the Crown.” There are provisions in s 318 of the Act requiring the Ministry to “develop costings” for the strategy and to “estimate
annual funding requirements” for the strategy. The Ministry in undertaking these
17 Telco Technology Services Ltd v Ministry of Education, above n 14.
18 Lab Tests Auckland Ltd v Auckland District Health Board, above n 2, at [68]-[73], and in particular at [72]-[73].
tasks would be subject to the same general statutory constraints to which all government departments, and the Crown generally, are subject, but there is no directive to act commercially. In addition, the purpose of the costings in the annual funding estimates, in a direct sense, is to assess the levy to be imposed on each gambling sector.
[78] In my judgment, an absence of legislative provisions bearing directly on the process leading to the decision in question is a point which supports the Foundation’s contentions on the scope of judicial review. This is reinforced by the fact that there are no statutory directives for the decision in question to be determined on a commercial basis.
The Mandatory Rules for Procurement by Departments
[79] The RFP process was subject to what I have referred to as “the mandatory rules” – the Mandatory Rules for Procurement by Departments. These were rules endorsed by the Cabinet in April 2006. The introduction to the mandatory rules records that they “set out mandatory standards and procedural requirements for the conduct of procurement by government departments” and that they “reflect and reinforce New Zealand’s established policy of openness and transparency in government procurement”. As the name makes clear, the rules are mandatory. There are some exclusions and exceptions but these have no application.
[80] Provisions of more direct relevance to this case are recorded or noted in the following paragraphs.
[81] Rule 4 is headed “Continuing policy and good practice framework”. It provides that “the Government continues to expect its departments to conduct all their procurement within the framework of the policy principles” set out in a policy guide. A footnote states that this includes “the principles of: best value for money over whole of life; open and effective competition; and full and fair opportunity for domestic suppliers”.
Ministry of Health RFP – Regional and National Services to Prevent and Minimise Gambling Harm 11
30 Describe your organisation’s involvement in any Whānau Ora collectives, including the name of the
collective and the organisations involved in the collective, and how the collective would add value to the delivery of the Services under this RFP
PART E – Outputs and Outcomes – 10.5% of Quality INFORMATION REQUIRED
PROVIDER INFORMATION
31
Describe any desired outputs and outcome measures that might be used to establish performance indicators and targets
32
Demonstrate how you will ensure the Services to be provided will be of excellent quality
For example, you could describe your internal quality assurance processes
PART E – Requirements (Minimum Standard) REFEREES
INFORMATION REQUIRED
PROVIDER INFORMATION
33
Please include details of at least two referees that can be approached and for whom you have provided and demonstrated the abilities to provide these Services either in part or in full.
Please include:
· the name of the referee;
· the telephone number and email address of the referee’s key contact person;
· an overview of the referee and its business;
· an overview of the services provided to the referee;
· the period over which the services were provided.
Ministry of Health RFP – Regional and National Services to Prevent and Minimise Gambling Harm 12
LEGAL OBLIGATIONS 34
Confirm that you have completed and
attached the “Statement of Compliance / Non-Compliance” attached as Appendix B.
35
Confirm that you have completed and
attached the “Request for Proposal”
Declaration attached as Appendix E.36
Confirm that you have completed and
attached the “Conflict of Interest
Declaration for Potential Provider’s”
form attached as Appendix F.
Ministry of Health RFP – Regional and National Services to Prevent and Minimise Gambling Harm 13
PART E – PRICE EVALUATION - 30% of total
Region Area (km2) Population Northland 13,941 158,300
5,600 1,507,700
25,598 416,200
12,447 277,200
8,351 46,800
14,164 155,000
7,273 110,100
22,215 232,500
8,124 490,100
22,715 140,700
68,682 591,700
31,990 211,300
34,347 94,900
Auckland Waikato Bay of Plenty Gisborne Hawke’s Bay Taranaki Manawatu-Whanganui Wellington Tasman / Nelson / Marlborough West Coast - Canterbury Otago Southland
PART E – FTE Rate - 100% of Price
Regions, Purchase Units and Scale – 4% of Quality Potential providers are required to identify which region(s) they wish their Proposal to be considered for, the scale of service your organisation is capable of providing in each region, and the specific purchase units proposed to be delivered.
Providers must clearly record their interest in being considered for the delivery of all or some of the services the Ministry proposes to procure to prevent and minimise harm from gambling in each region. Providers must circle Yes or No in box A for each of the 13 regions. Further details are only required for regions marked Yes.
Providers who wish to be considered for more than 1 of the 13 regions are required to submit a separate response for each region, including any providers who wish to be considered for national services.
Providers are required to complete all boxes under each region they wish to submit for the delivery of services. Any boxes that are not relevant must be marked N/A
The 13 regions are defined as follows:
The regions are defined by the regions and territories of New Zealand defined within the Local Government Act 2002. Specifically the Ministry refers to Part 1 of Schedule 2 of the Local Government Act 2002 (regional councils) and Part 2 of Schedule 2 of the Local Government Act 2002 (territorial authorities)69. The boundaries for regions are defined in
Part 3 of Schedule 2 of the Local Government Act 2002.
NB: the Ministry has combined the Canterbury and West Coast regional councils to form one region, and also the Nelson city council, Tasman and Marlborough district councils to form another.
69 of Health RFP – Regional and National Services to Prevent and Minimise Gambling Harm 14
NORTHLAND REGION Indicative need for services to prevent and minimise harm from gambling:
· 3.0 FTE clinical intervention (General and/or Māori services)
· 2.0 FTE public health (General and/or Māori services)
INFORMATION REQUIRED
PROVIDER INFORMATION
A
Please include your interest in being considered for the delivery of services to prevent and minimise harm from gambling in the Northland region
YES / NO
CLINICAL INTERVENTION PURCHASE UNITS
B
Please clearly identify the clinical intervention purchase units your organisation proposes to deliver.
C
Please record the number of clinical intervention FTE your organisation proposes to deliver.
D
Please clearly identify the average price per FTE that you propose to deliver the clinical intervention Services.
PUBLIC HEALTH PURCHASE UNITS
E
Please clearly identify the public health purchase units your organisation proposes to deliver.
F
Please record the number of public health FTE your organisation proposes to deliver.
G
Please clearly identify the average price per FTE that you propose to deliver the public health Services.
Ministry of Health RFP – Regional and National Services to Prevent and Minimise Gambling Harm 15
AUCKLAND REGION Indicative need for services to prevent and minimise harm from gambling:
· 30.0 FTE clinical intervention (General, Māori, Pacific and/or Asian services)
· 20.0 FTE public health (General, Māori, Pacific and/or Asian services)
INFORMATION REQUIRED
PROVIDER INFORMATION
A
Please indicate your interest in being considered for the delivery of services to prevent and minimise harm from gambling in the Auckland region
YES / NO
CLINICAL INTERVENTION PURCHASE UNITS
B
Please clearly identify the clinical intervention purchase units your organisation proposes to deliver.
C
Please record the number of clinical intervention FTE your organisation proposes to deliver.
D
Please clearly identify the average price per FTE that you propose to deliver the clinical intervention Services.
PUBLIC HEALTH PURCHASE UNITS
E
Please clearly identify the public health purchase units your organisation proposes to deliver.
F
Please record the number of public health FTE your organisation proposes to deliver.
G
Please clearly identify the average price per FTE that you propose to deliver the public health Services.
Ministry of Health RFP – Regional and National Services to Prevent and Minimise Gambling Harm 16
APPENDIX 2
SUMMARY OF INDIVIDUAL QUESTION WEIGHTINGS
Quality
Criteria
Weighting
Sub-criteria or Questions
Subweighting
Question from Response Template Requirements
12.5
Governance 25 8 Management 35 9 Financial viability 25 12 Conflicts of interest 15 14 100 Delivery
15
Viable organisational structure 15 10 Innovative practice or structure 10 11 Understanding requirements 5 17 Knowledge of sector 15 17 Work with Māori 10 18 Work with Pacific 5 18 Work with Asian 5 18 Work with Disabilities 5 19 Demonstrate how services delivered 20 18 – 21 Innovative service delivery models 10 20 100 Experience
7
Experience 60 22 Successful prior experience 40 22 100 Capability
15
Technical ability 70 23 Recruit and train 30 24/25 100 Alignment
10
Alignment with addiction treatment sector 40 26 Alignment with Strategic Plan 30 28 Alignment with provider collective 15 29 Alignment with Whanau Ora collective 15 30 100 Outputs and
Outcomes
7.5
Quality measures 50 32 Performance measures 50 31 100 Purchase Units 3 Deliver all purchase units across a region 100 27 100 Price
30
Deliver clinical and PH 25 Region B & E Ability to deliver as sole provider 15 Region Price per FTE 60 Region D & G 100
Minimum Standards Which criteria does it relate to above?
What question number is it? What is the Minimum Standard?
Adequate insurance 13 Have or will obtain insurance to cover any liabilities that may arise Confidentiality issues 15 Clear and justified logic for holding any information as confidential Client confidentiality 16 Arrangements in place to ensure client confidentiality
3
6
1