A rational, just and lawful Legal Services Commission, again

Friday June 10th, 2011

By Amy Mackenzie, Researcher, Harper Macleod LLP

The Legal Services Commission (LSC) has again succeeded in a legal action brought by a legal firm which questioned whether its tendering process complied with procurement Regulations and corresponding principles (Parker Rhodes Hickmotts Solicitors v The Legal Services Commission).

The claimant law firm raised an action against the LSC following an unsuccessful tender for the award of contracts to provide publically funded immigration and asylum legal services. The contracts, otherwise referred to as ‘New Matter Starts’, were to be distributed proportionally among the successful tenderers. However, after receiving a disappointing 357 contracts (as opposed to the 1500 originally bid for), the claimant sought judicial review.

Several grounds of argument were put forward by the claimant. The first point of contention was LSC’s ‘point’ system, upon which part of the award criteria was based.  The claimant argued that it was impossible to achieve the maximum number of points within the time-frame given, and thus the criteria were ‘unfair, arbitrary and unlawful’. Furthermore, it was suggested that the LSC was irrational in awarding one point to tenderers for merely submitting an application form to have a case worker become accredited at level 3 of the Immigration and Asylum Accreditation Scheme (IAAS).  Interestingly, the two most successful firms, which received the vast majority of work contracts, had submitted the application to IAAS – crucially receiving the additional and ultimately decisive one point. The claimant argued that this additional point had had an unforeseen impact on the eventual outcome of the procurement process. Moreover, the clarity of the tender documentation was questioned by the claimant, on the basis that it did not specify that the case worker could be part of the organisation as a whole, rather than being restricted to the specific bidding office. Furthermore, it was suggested that one successful applicant had not satisfied the capacity test set by the LSC.

The claimant’s application was held to have been brought out of time and was rejected.  Nevertheless, the High Court gave a view on the various grounds put forward by the claimant and held that the LSC had clearly specified its criteria within the tender documentation, all of which were found to be completely rational, just and lawful. In relation to the single point issue, the court held that this was perfectly acceptable, and that the claimant should have taken the precaution to secure the point if it ‘merely’ involved sending an application. Moreover, the term ‘organisation’ had also been used within the document, reinforcing that a case worker could in fact be from any office within the business. In relation to the LSC capacity test, the court held that whether a firm passed the test or not was for the LSC to decide, albeit that slightly more rigour may have been preferred by the court.

As readers will be aware, the LSC has faced numerous complaints about its award decision making process in respect of this one procurement exercise. It is a stark reminder of the heightened risk environment in which contracting authorities now operate, and the readiness of aggrieved bidders to raise legal proceedings.

For more information, contact Ruth McNaught at: [email protected]

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