8 For the procurement, the NDA Board relied on internal audit, external assurance reviews and legal advice that did not detect the problems later identified in the High Court judgment.
• Two internal audits and four external assurance reviews rated the procurement process as 'green' or 'amber green'. The reviews did not examine whether the evaluation of the bids adhered to public contracting regulations. The NDA did not commission further assurance reviews of the evaluation process or outcome of the competition after it became aware of Energy Solutions' legal claims.
• The NDA's Competition Programme Board, with representatives from HM Treasury, UK Government Investments (UKGI) and the Scottish Government, approved key documents, including the evaluation design and tender evaluation report, before they were approved by the NDA Board. The Department for Business, Energy & Industrial Strategy (the Department) and HM Treasury approved the decision to award the contract to CFP. The decision was also endorsed by the Scottish Government.
• The NDA requested and received two letters of comfort from its legal advisers, Burges Salmon. In the first, Burges Salmon noted that as of September 2013, the NDA had complied with its obligations under public contracting regulations. In the second, dated March 2014, Burges Salmon set out its involvement in the competition process, which included a review of all the NDA competition team's evaluation scores against evaluation comments to check they were consistent. Burges Salmon confirmed that, subject to the NDA evaluators reviewing and acting on their advice, they were "not aware of any reason" for the NDA not to appoint CFP (paragraphs 3.1 to 3.12 and Figures 10 to 12).
9 For the consolidation process, certain formal governance arrangements were not in place until August 2015, a month before the contractual deadline to complete the process. HM Treasury approved the contract award and share transfer to CFP in July 2014 subject to the NDA establishing an appropriate approval process for change controls through a Change Control Board (CCB) to supplement its existing change control review and approval processes. A review by the Major Projects Authority (MPA) in June 2014 also highlighted the need for the adequate governance of change controls. The CCB, tasked with overseeing the process, did not meet until eight months into what was meant to be a 12-month process. The CCB's terms of reference were agreed 11 months into the process. NDA executives also told us that responsibilities between the teams managing the consolidation phase overlapped, as did the responsibilities of NDA executives, which was unhelpful (paragraphs 3.13 to 3.16 and Figure 13).
10 Three reviews commissioned by the NDA assurance director cited significant risks with the consolidation process from December 2015. The reviews were shared with the programme's senior responsible officer and the NDA's chief financial officer, but the NDA Board was only informed of findings from the third review. In March 2017 an NDA interim internal audit report highlighted weaknesses with the quality of communication between NDA executives and the NDA Board during consolidation (paragraphs 3.17 and 3.18 and Figure 14).
11 The Department and UKGI were aware of delays to the consolidation process and that the cost of the contract was likely to increase, but raised no formal concerns to ministers until August 2016. HM Treasury and UKGI told us that they were concerned about the delays in consolidation, but relied on the NDA's assurances that a resolution would be achieved. From October 2016, a cross-government group of senior officials, including the chief executive of the civil service and officials from HM Treasury, the Department, UKGI and Government Commercial Function, met seven times to discuss the issues the NDA faced with litigation and consolidation (paragraphs 3.20 to 3.24).