JR Jones Solicitors v Legal Services Commission [2010] EWHC 3671 (Ch)

Thursday December 16th, 2010
Neutral Citation Number: [2010] EWHC 3671 (Ch)
    Case No: 0BM30589 and 0BM305559

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

    Priory Courts, 33 Bull Street,
Birmingham, B4 6DS,
    16th December 2010

B e f o r e :

HIS HONOUR JUDGE PURLE QC
Sitting as a High Court Judge

____________________

Between:

  JR JONES SOLICITORS
Applicants
  - and -

  LEGAL SERVICES COMMISSION
Respondents

____________________

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____________________

MR ALEX DURANCE (instructed by Mohammad Shabir, JR Jones Solicitors) for the Applicants
MS FIONA SCOLDING (instructed by Malcolm Bryant, solicitor for the LSC) for the Respondents

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    HIS HONOUR JUDGE PURLE QC:

  1. This is an application by the applicant solicitors claiming in the first instance a declaration to the effect that their failure to obtain an immigration contract following a tendering process for the carrying out of publicly funded work was unlawful.  
  2. A breach by the respondents, the Legal Services Commission (“LSC”), of regulation 47 of the Public Contracts Regulations 2006 (“the 2006 Regulations”) is alleged. Paragraph 47(1) provides:  

    “The obligation on –

    (a) a contracting authority to comply with the provisions of these Regulations … and with any enforceable Community obligation in respect of a public contract … is a duty owed to an economic operator.”

     

    It is further provided in subparagraph (6):

    “A breach of the duty … is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the High Court.”

     

    As proceedings under the Regulations raise competition issues, they are ordinarily assigned to the Chancery Division.

    Regulation 4(3) provides:

    “(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—

    (a) treat economic operators equally and in a non-discriminatory way; and

    (b) act in a transparent way.”

     

  3. Essentially the facts of this case are that a tendering process for immigration and asylum work was instituted towards the end of 2009 with a deadline for submitting tenders of 12.00 noon on 28th January 2010. It was stipulated that tenders submitted after the deadline would not be considered.  
  4. There was a full Information for Applicants Pack (“IFA”) which explained the process in detail. The exercise was a national one but broken up into geographical regions, and within each geographical region there were access points. The relevant access point so far as the current applicants are concerned, was South Staffordshire, Sandwell and Birmingham, which I shall call “the Birmingham access point” for short.  
  5. The IFA explained that the tendering process would be by an e-tendering system. There was a requirement for completion of a pre-qualification questionnaire (or “PQQ” for short) and an invitation to tender (or “ITT” for short). No issue arises in this case as to the PQQ. The purpose of the PQQ was to enable the Legal Services Commission to assess whether an applicant met the minimum standards, which the present applicants clearly did. The purpose of the ITT was for the applicants to demonstrate various attributes upon which they would be scored and which would form the basis of the competition. As things turned out, the competition was massively over-subscribed, both nationally and locally. This was particularly so at the Birmingham access point.  
  6. It was also explained in the IFA that for the Birmingham access point a finite defined number of asylum matter starts and immigration, non-asylum, matter starts would be offered. The process was important not just for the matter starts in question but because the obtaining of an immigration or asylum contract for advisory work is a pre-condition of obtaining licensed work which would enable the applicants, with the benefit of public funding, to bring substantive judicial review proceedings for its clients.  
  7. There was set out in the IFA in Annexe B a detailed explanation of the selection criteria and the scoring that was to be attributed to various aspects of that. I need only highlight one aspect of it: that preference, it was said, would be given to those individual bids that could provide the LSC with a higher level of confidence of delivery through experience of delivering legal services.  
  8. Under the e-tendering process there were four optional answers to one of the questions. Option 1 was the answer relevant to an applicant organisation which had delivered immigration services and advised clients in at least 35 cases in the immigration category of law since December 2008, including representing at least one client before the AIT. Annexe B indicated that if that answer could be given, then eight points would be awarded.  
  9. The second option was this: “The applicant organisation has delivered immigration services and advised clients in at least 35 cases in the immigration category of law since December 2008.” That carried five points. It will immediately be seen that the difference between the first and second options was that, although they both related to advising in at least 35 cases in the immigration category, an extra three points would be obtained by anyone who had represented at least one client before the AIT in the relevant period. I need not consider the other two options.  
  10. What happened in this case was that the applicants, when they came to tick or check the drop-down box on the computer screen when submitting the tender, checked the second option, when in fact they should have checked the first option. It is not difficult to see how that mistake could be made because each of those categories related to advising in at least 35 cases. The significance of the first option was that if, in addition, the applicants had represented at least one client before the AIT since December 2008 (which they had) they got an extra three points.  
  11. I should also mention that within the series of questions, the applicants were able to select an exceptional circumstances option for use where they considered that none of the other options provided applied to their individual bids. Those exceptional circumstances could then be evaluated and might get them a score of up to eight points. There are other parts of the form which also incorporated exceptional circumstances; so that, whereas the simple fact of whether one had or had not advised in the relevant number of cases including at least one client before the AIT was objectively verifiable involving a simple question of fact, the exceptional circumstances which other applicants might rely upon involved matters of judgment.  
  12. The conditions of the tender process were set out in section 11. That reinforced in 11.2 that tenders must be submitted by 12.00 noon on 28th January 2010 and provided that tenders would not be accepted if they were submitted after that time; nor would the LSC consider requests for an extension of the time or date for the submission of tenders.  
  13. Subsection 11.6 provided:  

    “It is the responsibility of Applicant Organisations to make sure that their tenders are fully and accurately completed and accompanied by the appropriate documents. We are under no obligation to contact Applicant Organisations to clarify their tenders or to obtain missing information or documents, and tenders which are incomplete may not be considered. It is Applicant Organisations’ responsibility to obtain at their own expense all additional information necessary for the preparation of their tender.”

     

  14. It is evident there from the use of the word “may”, that there was no inevitability about incomplete tenders not being considered. That was a matter in respect of which there was a retained discretion on the part of the LSC, just as there was in the analogous situation in Lion Apparel Systems Ltd v. Firebuy Ltd, a decision of Morgan J, reported at [2007] EWHC 2179 (Ch). In that case a discretion relating to undisclosed matters falsifying other information was considered. Morgan J ruled that as the matter was one for the discretion of the procuring authority, the court cannot intervene unless the exercise of discretion by that authority was manifestly wrong. 
  15. Going back to the conditions in this case, condition 11.8 provided:  

    “We may request Applicant Organisations to give additional information/clarification at any time during the tender process. Applicant Organisations should be prepared to provide additional information and/or clarify any aspects of their tender with us. We reserve the right to validate any part of your tender and information subsequently given to us.”

    Mr Durance for the applicant in this case has placed considerable reliance on conditions 11.6 and 11.8 in the circumstances which I shall come to relate.

  16. In condition 11.20 it was, amongst other things, provided as follows:  

    “Applicant Organisations may amend and re-submit their response to the PQQ and/or each ITT at any time up to the closing time and date” (which was, as I have said, 28th January 2010 at 12.00 noon). “If so amended and re-submitted by the Applicant Organisation it is understood that the last response submitted by an Applicant Organisation prior to the closing time and date shall be the response that is considered by the LSC in the evaluation and award process.”

     

  17. Condition 11.22 then provided:  

    “The right of appeal for unsuccessful applicants is limited to that set out in paragraphs 10.19 to 10.24 above”

     

    I shall return to the right of appeal later.

  18. Condition 11.23 provided as follows:  

    “Applicant Organisation must not amend or alter any document comprising part of their tender after the closing time and date set out in paragraph 11.2.”

     

    There is thus potential tension between conditions 11.6 and 11.8 which, read together, conferred a discretion upon the LSC to seek further information for clarification and condition 11.23, under which there was a ban upon amendments after the deadline.

  19. In evidence before me Mr Bryant explained how that apparent tension was dealt with. In paragraph 14 of his third witness statement he explained as follows:  

    “Given the scale of the tender exercise and the requirements to treat all applicants equally it was decided that we would only exercise discretion if it is apparent on the face of the application that something important was missing or there was an inconsistency.”

     

  20. I accept that, thus approached, the tensions between conditions 11.6 and 11.8 on the one hand and 11.22 on the other were resolved. There is a world of difference between a tender which is complete, unambiguous and contains no inconsistencies, as to which there is no scope for seeking further information or clarification, and one which is incomplete or with inconsistencies which may need to be resolved. If in that resolution process the LSC were to detect any underhand attempt to amend the substance of the tender, it would no doubt respond appropriately. However, that is not this case because, as I have said, what happened in this case is that the applicants checked the wrong box, earning itself five points instead of eight and thereby did itself out of three points.  
  21. The result of that error was that the applicants were not offered a contract; but, had they checked the correct box, they would have been offered a contract, though for a lesser number of matter starts than they in fact applied for. This is because they would have come, with others, equal third in the process and the available matter starts would have been pro-rated among them. As it happens, there were still a significant number of other suitable applicants amongst whom those matter starts could be distributed. They have now all been allocated to others.  
  22. However, there is also a national pool, representing approximately 10% of the total matter starts on offer, which was set aside and regarded by the LSC as available to it to deal with successful appeals, as well as to redistribute among successful applicants during the period of the LSC contracts, should allocated matter starts become available again or not be utilised in full. The reason for 10%, as explained to me in evidence which I accept, was because experience from the past showed that, even when matter starts are allocated, they are not always utilised for one reason or another. That may be because one firm does less of that work than anticipated or it goes out of business. Looking at the matter as a broad average, approximately 10% of the allocated matter starts do not get used and are therefore available for redistribution.  
  23. The expectation was not that 110% of matter starts would be used up judged against the initial matter starts on offer, but that the 10% would have the potential of increasing the anticipated shortfall in usage of approximately 10% to 100%.  
  24. In addition, the standard contract offered to successful applicants gave them, I am told, though I have not seen it, the right to apply for further matter starts. Given the intense competition that this exercise has produced, I was also told in evidence that people are already applying for further matter starts because of the small number of matter starts achieved.  
  25. The decision of the LSC not to award a contract was communicated on 28th June 2010 by way of the e-tendering message system. That, in turn, highlighted the rights of appeal. At this point, but not before, the applicants became aware of their previous error and drew this to the attention of the LSC.  
  26. The appeal process does not set out a detailed procedure, but is expressed in the following way in conditions 10.18 onwards:  

    “10.18 Where a response to an ITT or Individual Bid is unsuccessful or rejected, Applicant Organisations will be able to request written reasons as to why it was unsuccessful or rejected.

    10.19 There will be a right of appeal against a decision by us not to award a 2010 Standard Civil Contract or to reject your application if it is incomplete.

    10.20 The right of appeal applies in the following circumstances:

    (a) Where the Applicant Organisation does not pass the PQQ

    (b) Where the Applicant Organisation does not meet the Essential Criteria

    (c) Where the Applicant Organisation’s Individual Bid ranks lower than those of other Applicant Organisations on the Selection Criteria and is subsequently not awarded a contract.”

     

    I interpose to say it is 10.20(c) which is relevant in the present case. By reason of having ticked the wrong box, the applicants in this case ranked lower than they should have ranked. Instead of tying for third place, they did not qualify at all.

  27. Returning to the conditions:  

    “10.21 All those failing the PQQ or the Essential Criteria will be notified of this outcome before those Applicant Organisations whose tenders progress further.” (That is not relevant to the present case.) “The appeal period on the grounds of not passing the PQQ or Essential Criteria will therefore open and close earlier. Key dates are set out in the timeline in Section 3.”

     

    I mention that because what happened in this case was that the earlier timeline was not engaged, so that the present applicants were notified of the failure of their bid at the same time as those who succeeded were notified of their success. The LSC of course had a reserve of matter starts – namely, the 10% that I have mentioned – to deal with the potential for successful appeals and therefore adopted the approach that this would enable them to proceed to award contracts without the appeal process having the potential to delay the award of contracts to successful applicants. Paradoxically, the result of a successful appeal in this case would have been to award the applicants more matter starts than they would have received had their original tender been accurate, because what was divided amongst the successful applicants were all the available matter starts earmarked for the Birmingham access point; that is to say, had there been a successful bid by the applicants, the matter starts for all other successful applicants with whom they would have tied would have been somewhat less, as there would be an additional successful bidder for the same number of starts. If however the appeal had succeeded, the applicants would have been awarded the same number of matter starts as those awarded to successful applicants in the meantime – in other words, a higher number.

  28. Paragraph 10.22 of the conditions provided:  

    “10.22 Appeals should be made through the eTendering system. The Legal Director (or the Legal Director’s appointed representative) will review all appeals, and he or she will determine the procedure and will decide whether to invite or require any further information and will notify organisations accordingly before making a determination on the appeal.”

     

    And 10.23:

    “10.23 There will be no further right to appeal.”

     

  29. Mr Durance, founding himself upon the absence of any definite process in 10.22, contended that once the LSC became aware on appeal that a mistake had been made, that engaged the power of the LSC (recognised in 10.22) to seek information to verify the fact that a mistake had been made. As, moreover, the underlying facts were all objectively verifiable, it was a disproportionate response for the LSC not to determine the appeal on the correct facts, as clarified by the further information provided by the applicants.  
  30. The appeal decision was notified on 5th August 2010 and the relevant parts are as follows:  

    “FACTS

    The Applicant submitted a response to the Invitation to Tender (ITT) as part of its tender to deliver publicly funded Immigration services on 26 January 2010. A decision letter was sent to the applicant organisation on 28th June 2010.”

     

    There then followed the material parts of the decision letter. The appeal letter continued:

    “The Applicant Organisation submitted an appeal against the decision not to award a contract on 29 June 2010 stating:

    ‘… we have been awarded 5 points in Criteria 3, when we should have been awarded 8.

    … We are unaware as to why the points have not been allocated. Either we have selected the wrong box due to difficulty with the e-tendering system at the time of the application …’”

    There the speculation ends. There is no alternative to that “either”. In fact the “either” was the true reason for the applicant only being awarded 5 points instead of 8.

     

  31. The decision on appeal was expressed as follows:  

    “Having reviewed the original tender response, I am satisfied that the score of 50 was correct based on the tender response completed by the Applicant.

    I am satisfied that the Information for Applicants comprehensively detailed the actions required for an Applicant Organisation to submit its tender response. I am also satisfied that the consequences of failure to complete a tender response accurately are equally clear.

    The purpose of the Terms and Conditions of Tender is to ensure that Applicant Organisations are dealt with consistently and fairly. The LSC is bound to comply with the Public Procurement Regulations 2006 which also require the LSC to treat tenderers fairly and consistently.

    I am satisfied that the Applicant’s tender has been evaluated in accordance with the criteria which apply to this Invitation to Tender.

    I do not agree that the decision in this case is disproportionate or irrational. I consider that it would, however, be disproportionate or irrational to ignore the tender rules and the LSC’s obligations under the Procurement Regulations in this case to the advantage of this Applicant and the detriment of other Applicants.

    With regard to the criterion: ‘Experience of delivering legal services’: the Applicant’s response in the Tender Information Form (TIF) submitted with its tender stated that the Applicant Organisation has delivered Immigration Services and advised clients in at least 35 cases in the Immigration Category of Law since December 2008. The applicant was, therefore, correctly awarded 5 points against this criterion, as provided for in the points allocation applied to that selection criterion.

    Conclusion:

    For the reasons set out above I confirm the original decision.

    As indicated in the IFA there is no further right of appeal.”

     

  32. One point raised by Mr Durance I can deal with straightaway. In the original decision letter of 28th June 2010 it was said:  

    “Those applicant organisations whose tenders scored 51 and below, including your tender, were not awarded a contract because by this stage there were no Matter Starts left to award.”

     

  33. Mr Durance pointed out that, on one view of the matter, that was both misleading and wrong because there was a pool of 10% which was available for successful appeals. However, this reasoning must be looked at in the context of the IFA and the matter starts which were on offer for the Birmingham access point. They have all been awarded. The fact that there is a residual 10% which is meant to cover anticipated shortfalls nationally in the usage of the allocated matter starts does not, in my judgment, make that statement misleading or wrong. Accordingly, there is nothing in that point, in my judgment.  
  34. Mr Durance’s more substantial point was that, where, as here, an obvious mistake comes to light which is objectively verifiable, it is disproportionate for the LSC not to review the matter on appeal. No other applicant will be adversely affected because everyone else had the same right to correct obvious verifiable mistakes. Moreover, the amount of starts allocated to successful applications would not be adversely affected. Development of this submission involved consideration of a considerable amount of law on the principle of proportionality and other related arguments.  
  35. On the question of proportionality generally I can deal with this by reference initially to the decision of the European Court in R v. Minister of Agriculture Fisheries and Food & Anr [1991] 1 CMLR 507 where it was said:  

    “The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity are subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous and the disadvantages caused must not be disproportionate to the aims pursued.”

     

  36. Here it is said by Mr Durance that the response was disproportionate because the objective that was here sought to be achieved was the identification of suitable legal service providers through a process of fair competition. There is no prospect of abuse by allowing the mistake to be corrected, given that the underlying facts are objectively verifiable. To keep his clients out of the market would improperly inhibit rather than promote competition in the absence of any serious risk of abuse.  
  37. I was referred also to R v. Secretary of State for Health, ex parte British American Tobacco Investments Ltd, another decision of the European Court of Justice, reported at [2002] ECR I-11453. In that case it was stated as follows: 

    “As a preliminary point, it ought to be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it.”

     

    Here of course Mr Durance says that to keep out the true facts on the appeal process, given the availability of matter starts, went far beyond what was necessary to achieve the object in this case of the provision of proper legal services after a fair competition process.

  38. Further on in the same case it was said:  

    “The legality of a measure adopted … can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue”.

     

    That, it seems to me, echoes, though in slightly different language, what I have already cited from Morgan J’s decision earlier in the Lion Apparel case. Mr Durance says here that the blanket exclusion of the ability to correct obvious mistakes on appeal once they become obvious is manifestly inappropriate.

  39. Neither of those cases concerned a tendering process. However the next case to which I was referred did. That is Tideland Signal Limited v Commission of the European Communities [2002] 3CMLR 33. On the particular facts of that case the court found that a tender document, which had in common with all other tender documents been resubmitted, was ambiguous with regard to the period for which the tender remained valid. The question was whether that ambiguity could be clarified. The answer was that it could be, but it was a case of an ambiguity which could be observed from consideration of the tender itself and the circumstances in which it was submitted.  
  40. In that context it was said that a power (which was specifically set out in section 19.5 of the instructions for tender) to seek clarification of tenders was not only practically necessary but that it would be contrary to the requirements of good administration for the evaluation of that tender to be rejected without exercising that power to seek clarification.  
  41. That of course was in the context of the particular condition 19.5 in that case, but it certainly supports the proposition that a decision not to exercise a discretion, assuming one exists, is one which is reviewable under Community law principles on the grounds, as it was put there, of “gross manifest error of assessment”. It does not, however, assist Mr Durance as much as he would like because, as I have said, the error was obvious from a consideration of the tender documents and could be clarified. Here, by virtue of having ticked the wrong box, there was no obvious error until the appeal process revealed it. By that time the right to amend the original tender had been lost and therefore, it is said by Ms Scolding, the absolute prohibition of amendments set out in the conditions to which I have referred must prevail. That is a point I will come back to, but it is certainly not resolved by the Tideland Signal case.  
  42. The next case to which I wish to refer is the Commission of the European Community v. Kingdom of Belgium, which is also in the European Court Reports [1996] I-02043. There a Belgian public authority had taken into account figures which had only been submitted after the initial tender. That was held to contravene the requirement of equality of treatment. The submission of new figures was the equivalent of an amendment. The Belgian authority was therefore held to have acted unlawfully, there being no permission under the tender document to act in that way.  
  43. That is a case which certainly favours Ms Scolding’s submissions. Mr Durance says that he is not asking for preferential treatment for his clients. He is saying that anyone who made a mistake had the equal opportunity of seeking to have it corrected on appeal; all disappointed tenderers were entitled to reasons and anyone considering the reasons would see immediately (as his clients did) what it was that affected the score.  
  44. Against that, Ms Scolding has referred me to the more recent case of Burnett J in Allan Rutherford LLP Solicitors v. The Legal Services Commission [2010] EWHC 3068 (Admin). In that case one of the grounds of challenge to a tender process (in, as it happens, judicial review proceedings) was that the appeals process was not explained, but that the LSC fettered a broad discretion by refusing to deviate from the declared approach of the highest scoring bidder being allocated all the new matter starts if it bid for them. It was alleged that it should have awarded some new matter starts to the claimant on appeal as a matter of discretion. That is not a point that has any feature in the present case. Though a very different case, in paragraph 33, Burnett J said this: 

    “33. The LSC disputes that it has a general discretion because a fair tender process must apply the same criteria to all bidders. A necessary feature of that process is to fix a date by which any bid must be finalised. To allow one bidder in effect to change or revise its bid after all other bidders have been told that cannot happen would, submits the LSC, result in an unfair process at least at the appeal stage when (necessarily) the results of the tender process have been announced.”

    Then in the next paragraph he continued:

    “34. Mr Sinclair is right to suggest that the detail of the appeals process is not spelt out in the tender document. Nonetheless, it takes its colour from the process of which it forms part. Having invited tenders against a set of published criteria it would generally not be lawful for the LSC to apply different criteria to one bidder in the appeal process. An appeal will result in a re-evaluation of a submitted bid against the published criteria.”

     

    Then later on:

    “I do not consider that the LSC can be criticised for preventing appellants at this stage in the process from amending their bids. It is undoubtedly right that a deadline for submitting a bid can, without offending the 2006 Regulations, in limited circumstances be extended if it would be proportionate to do so … but they do not arise in this case, which is concerned with an appeal process after the results of the tender process have been announced.”

     

  45. It seems to me that those comments, though made in circumstances which bear little or no relationship to the present case, nonetheless afford accurate guidance as to how I should approach the matter. I do not think it would be right to allow the applicants to take this point, effectively by way of amendment, for the first time on appeal, unless it can be demonstrated that this point could have been taken had it been spotted earlier before the appeal process came into being. In this connection, the difficulty remains that amendments after the bid time are expressly prohibited under the conditions.  
  46. It seems to me that there is force in the point advanced by the LSC that, if they are told that they should have allowed this appeal on the basis of correcting an obvious mistake, they must review other cases to ensure that everyone has equality of treatment.  
  47. Most people, looking at the appeal process, would, I imagine, assume, as did Burnett J, that the appeal process takes its colour from the procurement process itself. It must therefore be likely that others who could have appealed, whether in the Birmingham competition or elsewhere nationally, have not done so because of their more natural reading of the conditions prohibiting those amendments. However, before expressing a final view on the matter, I ought to consider other cases which have been cited to me.  
  48. I was referred by Mr Durance to Resource Management Services v. Westminster City Council [1999] 2 CMLR 849, which concerned a tender for haulage services. What happened in that case is that, following the submission of tenders, there was a meeting between the council and its tenderers at which it appears that all the tenderers were invited to submit revised tenders by a specified date. By various means, the successful bidder happened to be the council’s own in-house team. That was successfully challenged on grounds which are not really relevant to the present claim. However, one point is relevant to the present claim, and that related to the amendments that the Plaintiff was allowed to make after the initial tender. It was said that the meetings to discuss the bids (which resulted in the invitation to submit revised bids) was an improper change of procedure. However, Smedley J regarded the meetings as merely an opportunity for the defendant to clarify any apparent ambiguities or discrepancies appearing on the face of the documents initially submitted.  
  49. I do not think this case particularly helps Mr Durance. It was a case where all the tenderers had been treated alike and where the corrected ambiguities or discrepancies were evident on the face of the Plaintiff’s tender and became more evident following discussions. It is not a case which assists in the present case when there was no reason for the LSC at the initial tender stage to suppose that a mistake had been made.  
  50. Another case to which I was referred was Adia Interim v. Commission of the European Communities [1996] 3 CMLR 849. This was a case on the other side of the line. It was evident from the face of the tender in that case that a systematic calculation error had occurred which was detected by those considering the tender. It was held that it would not have been permissible for the Commission to contact the tenderer because that would have infringed the principle of equal treatment to the detriment of other tenderers. All the tenderers were, it was said, in common with the complainant under an equal duty to take care in drawing up their tenders, and the Commission was not guilty of manifest error in assessing the tenders.  
  51. Regrettably for the applicants in this case, that seems much closer to the present case than the Resource Management case, and was in fact a stronger case for justifying intervention than here because there was an obvious error on the face of the document, although it was not possible to divine what it was. Had there been (and, as far as I could tell, there was not) the equivalent of a tender condition allowing clarification, that may have enabled contact to have been made for the purpose of seeking clarification. But that does not appear to have been the case. Here of course the LSC did not need to clarify anything. The tender, as I have said, was unambiguous.  
  52. The next case I was referred to was CAS Succhi di Frutta SpA v. Commission of the European Communities [2004] ECR I-03801. This was a case concerning the tendering process for fruit juice and fruit jams intended for the people of Armenia and Azerbaijan. The decision is hardly of especial significance, apart from the statements of general principle from paragraphs 108 to 111 which have subsequently been referred to in other cases in this jurisdiction. I need only read paragraphs 110 and 111:  

    “110. Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenderers or all the competitors must be subject to the same conditions.”

     

    Pausing there, that assists Ms Scolding more than it assists Mr Durance because the conditions which we are here concerned with include the conditions putting the onus on the applicant to get the answers right and barring amendments after the deadline. Paragraph 111 reads:

    “The principle of transparency, which is its corollary, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions detailed in the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract document so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way; and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract.”

     

  53. Again this seems to help Ms Scolding more than it helps Mr Durance, because here the conditions and the selection criteria were spelt out. The points that were allocated to the two different answers were clearly explained in the appendix to which I have referred, so that anyone reading them with care would have realised what the position was.  
  54. The next case to which I refer is the English case of The Law Society v. The Legal Services Commission [2008] QB 737. This, it seems to me, does not assist in taking the case any further, though there is a useful summary of the principles applicable in a case such as this in paragraph 43:  

    “The rationale of the principle has been expressed in a number of different ways:

    (1) First, it enables the contracting authority to satisfy itself that the principles of equal treatment and of non-discrimination on the grounds of nationality have been complied with: Case C-324/98 Telaustria Verlags GmbH v. Telekom Austria AG [2000] ECR I-10745, at [61]; Case C-19/00 SIAC Construction Ltd. v. Mayo County Council [2001] ECR I-7725, at [41]; Case C-340/02 Commission v. France [2004] ECR I-9845, at [34].

    (2) Second, it facilitates competition: Case C-324/98 Telaustria Verlags GmbH v. Telekom Austria AG [2000] ECR I-10745, at [62]; Case C-458/03 Parking Brixen GmbH v. Geimeinde Brixen [2005] ECR I-8612, at [50], [52]; Case C-174/03 Impresa Portuale di Cagliari Srl v. Tirrenia di Navagazione SpA, per Jacobs AG at [75].

    (3) Third, it enables the impartiality of procurement procedures to be reviewed: Case C-324/98 Telaustria Verlags GmbH v. Telekom Austria AG [2000] ECR I-10745, at [62]; Impresa Portuale di Cagliari Srl v. Tirrenia di Navagazione SpA, per Jacobs AG at [75].

    (4) Fourth, it precludes any risk of favouritism or arbitrariness on the part of the contracting authority: Case C-496/99 P Commission v. CAS Succhi di Frutta SpA [2004] ECR I-3801, at [111].

    (5) Fifth, it promotes a level playing field by enabling all tenderers to know in advance on what criteria their tenders will be judged and those criteria are assessed objectively; Case C-19/00 SIAC Construction Ltd. v. Mayo County Council [2001] ECR I-7725, per Jacobs AG, at [38].”

     

  55. In summary, that passage refers to the important principles of equal treatment, non-discrimination, the need to facilitate competition, the need for impartiality in procurement procedures, the need to avoid risk of favouritism or arbitrariness on the part of the contracting authority, and the promotion of a level playing field by enabling all the tenderers to know in advance on what criteria their tenders will be judged for the objective assessment of such criteria. All of those considerations, it seems to me, reinforce Ms Scolding’s approach that it was for the applicant, however hard the result may be, to get its initial tender right, and that the process would be potentially subverted if the matter was now to be reopened on appeal.  
  56. The next case to which I was referred is SECAP SpA v. Commune di Torino [2008] 2 CMLR 1558. This case concerned lawfulness of abnormally low tenders in a particularly burdensome tender process. It was relied upon by Ms Scolding. She emphasised the public interest in conducting a tendering process such as that now under consideration. It follows, she says, that the presence of clear and specifically defined criteria, especially relating to amendments, must prevail over any sense of unfairness to the applicants.  
  57. The relevant passages are paragraphs 32 and 35. Paragraph 32:  

    “… it may be acceptable automatically to exclude some tenders on account of their being abnormally low if recourse to that rule is justified by the unduly large number of tenders, a fact which might oblige the contracting authority concerned to examine on an inter partes basis such a high number of bids that it would exceed the administrative capacity of those authorities or might, due to the delay which such an examination would entail, jeopardise the implementation of the project.”

     

    This seems to me to justify the approach of the LSC in this case, which was to require the applicant organisations to evaluate themselves against the published criteria, leaving it open to such validation process as the LSC might consider appropriate following identification of successful bidders. At paragraph 35, having ruled that abnormally low tenders could be excluded in appropriate circumstances, this was also said:

    “That would not be the case if national or local legislation or even the contracting authorities concerned were to set a reasonable threshold above which abnormally low tenders were automatically excluded on account of there being an unduly large number of tenders.”

     

    That is the same point really as the point in paragraph 32.

  58. I refer now to one of the Dynamiki cases, as they are known for short, the word Dynamiki being preceded by a word that I cannot pronounce or, I expect, even spell. The one I am referring to is Case T-387/08 in the European Court Reports in 2010. In that case, referring back to Tideland Signal, to which I have referred, and to an earlier Dynamiki decision, this was said by the European Court:  

    “As a preliminary point, it must be borne in mind that the Commission has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court’s review is therefore limited to checking compliance with the applicable procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers.”

     

    That emphasises the limited role of the court in a case such as this.

  59. I now turn to consider the recent decision of the Court of Appeal in the case of Azam & Co. v. Legal Services Commission [2010] EWCA Civ 1194. The Court of Appeal upheld the decision of Briggs J to the effect that someone who is late with a tender (again for publicly funded immigration work) even by a very short time through oversight, is thereby barred from the tendering process. Pill LJ gave the first judgment and, after making citations from, amongst other cases, the Succhi di Frutta case, the earlier Law Society case reported in [2008] to which I have referred and another first instance decision of David Richards J in Leadbitter v. Devon County Council [2010] ELR 61 where various statements of principle were approved, he concluded at paragraph 34: 

    “I do not accept that there was a legal error in the decision-making process. The rules of tender had been drawn up; the significance of the deadline was stated. In a detailed letter the respondents explained the importance of their duty to adhere to the principle of equal treatment. A three-page letter would not have been necessary if the application for an extension of time had not been considered.”

     

    He then went on to consider a separate point from that – whether proper consideration had been given to the reasons relied upon – and then in paragraph 36, turning to the question of proportionality, Pill LJ said this:

    “As to proportionality, the judge acknowledged the ‘harsh economic consequences of the inability to tender’ as expressed at paragraph 70. However, he gave ‘weighty reasons against the grant of an extension’. I agree with those reasons. The decision not to permit an extension was not, in the circumstances, disproportionate. I have already read paragraph 70 of the judgment where the reasons are set out. These are put as an objective test, but it is clear, in my judgment, that the relevant considerations were kept in mind by the respondents. I also agree with the approach of David Richards J in Leadbitter and I accept that it reflects the earlier authorities. A deadline is a necessary part of a tendering process. The deadline was plainly stated in readily accessible documents. There is no fault by the respondents; they needed to be conscious of their duty to treat tenderers and potential tenderers equally and to avoid suggestions of favouritism towards a particular party. The failure to tender arose from a single and very unfortunate failure, though against the background of a failure by Mr Azam and his firm to monitor what would seem to be documents sensible to be monitored by a firm doing this type of work, it was the failure to take action on the receipt of the letter of 23rd December. The need for an extension could not be attributed to any fault on the part of the respondents or to any factor outside the control of the appellants.”

     

  60. Much of that applies here, if not all of it. The reference to the significance of “fault” was that David Richards J in the earlier decision of Leadbitter, to which I have referred, postulated that there might be circumstances where proportionality would exceptionally require acceptance of the late submission of a tender, most notably where there was some fault on the part of the procuring authority. He also went on to emphasise that there was a wide margin of discretion for contracting authorities in deciding whether to depart from the rules laid down in the tender documents. He considered this to be in line with the learned observations of Professor Arrowsmith at various points in her publication The Law of Public Procurement 2005, paragraphs 7.94 to 7.96. However, for that discretion to be exercised, the burden must be on the applicant to demonstrate manifest error on the part of the LSC.  
  61. Pill LJ went on in paragraph 37 to suggest that there might also be a potential prejudice to other tenderers, i.e. successful tenderers, not just those who did not get their bids in on time. It was pointed out that the number of bids for new matters in London exceeded the available work by a factor of approximately three. There is a similar level of intense competition at the Birmingham access point. Pill LJ went on:  

    “Those ranked lower on the list of acceptances, assuming that the appellants would have been accepted, would have obtained fewer cases than if the appellants were not present on the list and would therefore have been prejudiced by their presence.”

     

    That does not apply here, of course, in the event that the LSC had allowed the appeal, because, as I have mentioned earlier, the applicant would paradoxically have got more matter starts than it would otherwise have got had its bid been correct in the first place. Those who were successful were in that sense not prejudiced.

  62. However, as I have indicated, I do not consider that it is appropriate to attack the appeal process unless it can be demonstrated that, had this error come to light, it should have been corrected if submitted after the last date for amendment but before the evaluation process was complete. Had that happened, then those applicants would have ended up getting less matter starts without the opportunity to put in any amendments of their own.  
  63. There is also the last sentence of paragraph 37 which is significant, given the evidence I have heard in this case, where Pill LJ observed that the potential for prejudice applied to the residual list – which I take to mean the 10% list which I have mentioned in this casefor which the appellants could have applied if the appeal were to be allowed. Any successful appeal which would have diminished the residual list would necessarily reduce the number of further matter starts a successful applicant (whether in Birmingham or elsewhere) might otherwise be able to bid for during the currency of its contract.  
  64. However, the point was not finally determined by Pill LJ. I do however consider that it would apply in the present case, and his observations on the point seem to me to be compelling.  
  65. The actual basis of the decision in Azam was that there was no error of law in the respondents’ approach and decision. In my judgment, it is not right to regard what has happened here as a clarification of the existing bid which the LSC could have taken on board its deadline. This was an amendment pure and simple.  
  66. There may be, just as there is in the case of late bids, a residual discretion in exceptional circumstances, especially where there is fault on the part of the contracting authority, justifying the LSC waiving the prohibition on amendments and allowing a mistake to be corrected. It is difficult to see how they could do that without allowing other mistakes to be corrected, and if, as was suggested in argument, one is to draw a distinction between mistakes relating to objectively verifiable facts and other mistakes, that itself gives rise to scope for legal challenge as to how any particular mistake is to be classified.  
  67. Moreover, although there is no element of potential abuse on the facts of this case, given the objectively verifiable nature of the mistake, if mistakes are allowed to be corrected after the deadline which are not evident on the face of the tender, that would give rise to the risk of tenderers having second thoughts, and portraying their original thoughts as erroneously recorded when there was in truth a change of position.  
  68. Rimer LJ agreed with Pill LJ in the Azam case, pointing out that to extend time in that case would give to Azam an advantage denied to all other tenderers. There might be some who had rushed the presentation of their bid in order to meet the deadline who could have improved it had they had an additional week. Likewise here, there may be some people who could have improved their bid if they had had an additional week to amend it. Moreover, Rimer LJ went on in paragraph 51:  

    “Moreover, in an oversubscribed competition such as this one was, in which there would have to be a proportionate scaling down of the awards of ‘new matter starts’ to the successful bidders, the introduction of a late bidder into the system would have the potential to affect those awards in a way which would not otherwise arise.”

     

    That also applies here or at least would have applied had the mistake come to light earlier.

  69. Rimer LJ also said in paragraph 52:  

    “The essence of a competition by way of tender such as that in question is to provide all competitors with an equal opportunity to make their case.”

     

    That is obvious. Here I consider the applicants had an equal opportunity to make good their case for a legal aid contract. They availed themselves of that opportunity, but, through their own error, have not taken full advantage of that opportunity. That is a sadly regrettable outcome, but I do not think the LSC can be criticised for having applied the conditions of the tender. On the contrary, they would have exposed themselves to criticism had they acted otherwise. At all events, their decision to apply the conditions strictly is not manifestly wrong.

  70. Rimer LJ also considered the observations of David Richards J in Leadbitter, where he “recognised that there may be exceptional cases in which proportionality will require the acceptance of a late tender”, and emphasised his agreement with the proposition, in general, that, even if the tender conditions give a discretion to accept late submissions, there was no requirement to extend time, particularly where the lateness resulted from a fault on the part of the tenderer.  
  71. With minor modifications, it seems to me that the approach of Pill and Rimer LLJ apply here. Sullivan LJ agreed with both judgments.  
  72. For those reasons therefore and with some regret, I dismiss the application under the 2006 Regulations.  
  73. I should mention finally that these proceedings have been consolidated with judicial review proceedings originally commenced in the Queen’s Bench Division which were transferred to the Chancery Division on the question of costs. I indicated my view in an earlier judgment that the proceedings were not properly brought as judicial review proceedings because of the availability of alternative proceedings under the Regulations, especially where contracts had already been awarded. When the matter was then before me, it was suggested that the only extant remedy under the Regulations was damages. That is no longer pursued in the particular circumstances of this case but, even if that were correct, that is the remedy which the Regulations give. It is an alternative remedy and it is an adequate remedy. It seems to me that it is entirely inappropriate for economic operators such as the applicants to bring proceedings by way of judicial review (supposedly a remedy of last resort) when an alternative remedy is available. I am conscious that the Court of Appeal in Law Society of England and Wales v. Legal Services Commission [2010] EWHC 2550 entertained judicial review proceedings at the suit of the Law Society. However, the challenge there did not relate to a particular procurement exercise affecting an economic operator, but on the fundamental rights and wrongs of the procurement exercise. The Law Society had no right of recourse to the Regulations because it is not an economic operator. The Court of Appeal, whilst referring briefly at paragraph 108 to the obligation of transparency and proportionality, specifically did not decide whether those issues were justiciable in public law proceedings. In my judgment, at least in the instance of an economic operator, they are not. 
  74. Be that as it may, the Chancery proceedings under the Regulations are dismissed and I will now formally refuse permission, for the reasons I have given just now and on the previous occasion, for judicial review proceedings to be brought. I will now hear counsel on any consequential matters.

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