THE SCOTTISH Government’s new chief civil servant has told MSPs that there should have been a paper trail explaining why ministers were happy to accept the substantial risks of awarding a £97m order to Ferguson Marine to build two ferries without mandatory refund guarantees.

Appearing before the Public Finance and Administration committee, John-Paul Marks said it was "regrettable" that there was no documentary evidence of who signed off on the deal and their rationale for doing so.

Last month, Audit Scotland suggested this key piece of documentation may never have been created in the first place.

During the committee hearing, Labour MSP Daniel Johnson said “A preferred bidder status was awarded on the basis that the ferry contract would be a standard contract where the constructor assumed the risk, they then revise that so that a 25 per cent risk was assumed by essentially the public purse. 

“That was flagged, and apparently Scottish ministers approved it, but there is no documentation of that approval. That's not acceptable, is it? 

“Do you agree that that is a critical decision? That when a contract is altered, where a preferred bidder status is awarded on one basis and then a contract is altered in that way, that that is a ministerial decision and that decision should be recorded?”

Mr Marks replied: “So the decision should be recorded. I think you're talking about events from seven years ago, for which 210 documents have been published on the website, and I've read a number of them. They do document precisely that advice went up to ministers setting out the risks, and then that decision is communicated and the contract awarded. 

“The point that the First Minister has made that's regrettable is there are more documents that show the ministerial considerations back in 2015 but in terms of advice on the contract at the time, and the decision being made, that is in the documents that are published on the website. 

Asked if he accepted that this was a critical decision, and it should have been documented and that the lack of documentation could even potentially be a breach of the law. 

Mr Marks said his role as a new permanent secretary was to “make sure that the lessons have been learned, and focus forward on ensuring we're doing everything we can to support the delivery of [the two ferries commission] 801 802, and then the future ferry procurement process.” 

He told MSPs: “The decision back in 2015, the submission that went to ministers is on the website. I read it, it sets out the risks, it sets out the mitigations. And then ultimately, a further document follows, which then records the ministers have agreed to award the contract. So there is documentation that tracks the decision-making process. But I agree with you it is regrettable.” 

During the committee sessions, Mr Marks also defended the decision of his predecessor Leslie Evans to snub MSPs before her retirement.

She was accused of showing “discourtesy” by refusing to take part in what would effectively have been an exit interview.

Ms Evans played a key role in the Scottish Government’s unlawful investigation into harassment complaints against former First Minister Alex Salmond.

Mr Marks told the committee that he was “happy” to appear before them at any time, but that it became his job to answer for the civil service when Ms Evans retired on Hogmanay, despite “contractual agreement with regards to leave that was in lieu,” meaning she was still a government employee for another 12 weeks.

Mr Johnson asked the chief mandarin: “Do you accept that as an officeholder, you do not inherit all your predecessor's knowledge and experience?

"It's not as though you're Doctor Who, in that regard. Do you accept that it is relevant to ask someone in to ask about particular circumstances and their reflections on them?”

Mr Marks said there may be some advantage to not inheriting “all the knowledge of the past”. 

He added “And it's incumbent on me to make sure I've learned as much of the lessons as I can. And I have read, for example, of course, the parliamentary inquiry into Ferguson's, the Audit Scotland reports.

"They're both robust, the recommendations are clear. And we need to make sure they're implemented in full. 

“But in terms of continuity, which I do agree, we need to make sure that we maintain our knowledge and continuous improvement, I look to my team now to do that, rather than my predecessor.”

Mr Marks was also questioned about the recent ruling by the Information Commissioner that the Scottish Government should divulge some of the legal advice it was given on legislating for another independence referendum following an appeal from The Scotsman newspaper.

The senior civil servant reiterated the Government’s view “the convention that legal advice is protected for ministers to create that private space for consideration of legal advice is a convention that is well established”.

“We note the Information Commissioner’s judgement and will respond ahead of the deadline and ministers are giving it careful consideration.”