ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Mitting
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE TOMLINSON
| The Queen (on the application of Yvonne Hossack)
|- and -
|Legal Services Commission
Miss Fiona Scolding (instructed by the Legal Services Commission) for the Respondent
Hearing date : 28 June 2011
Crown Copyright ©
Lord Justice Richards :
"In each of your responses you submitted a Tender Form for Wiltshire. Therefore, whilst we received Tender Forms from you, they did not relate to the applicable ITTs (other than in response to the Wiltshire ITT) and accordingly your tenders were incomplete.
Accordingly, we are unable to take your tenders forward and all apart from that for Wiltshire have been rejected."
The judgment of Mitting J
"8. There remains, however, buried within the wider claim a claim which might by one route succeed. One of the forms submitted was for Northamptonshire, the place in which Mrs Hossack has her office. Had it been headed 'Northamptonshire' instead of 'Wiltshire', I have no reason to doubt that the Legal Services Commission would have allocated New Matter Starts to her in Northamptonshire. It would have been but a small part of her practice but it would nonetheless have had some value for her and for those clients that she was able to advise.
9. If a challenge to the decision not to allocate her New Matter Starts for Northamptonshire could only have been brought by judicial review proceedings, then the question of whether or not I should have permitted it to be brought would be finely balanced. It would not obviously be hopeless."
The issues before us
The legal framework
"(1) Paragraph (2) applies where –
(a) the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 47A or 47B; and
(b) the contract has not yet been entered into.
(2) In those circumstances, the Court may do one or more of the following –
(a) order the setting aside of the decision or action concerned;
(b) order the contracting authority to amend any document;
(c) award damages to an economic operator which has suffered loss and damage as a consequence of the breach."
By regulation 47J, where the contract has been entered into, the remedies are limited to (a) a declaration of ineffectiveness (covered by regulation 47K and irrelevant to this case), (b) penalties (covered by regulation 47N and also irrelevant to this case), and (c) damages.
The LSC's approach to other cases
"Across the tenders for Family and Social Welfare Law (i.e. Family, Debt, Housing, Welfare Benefits, Community Care and Employment) we sent 759 requests for clarification with respect to the Pre Qualification Questionnaire and/or Essential Criteria."
"As a result of the information sought by Mr Hersi, and as a result of the information which has come to light, the Respondent is currently undertaking a full investigation into all aspects of the clarification exercises undertaken during all tenders. As can be understood, this involves examining over 10,000 tenders and considering whether or not there has been inconsistency in approach. The Respondent has not yet finished this process, and would not wish the Court to be provided with information which is incomplete, or which would need to be further amended in the light of the difficulties which have arisen. The Respondent expects to complete this process by the end of July 2011, and to provide a full and comprehensive witness statement to the Court in all outstanding cases indicating what was or was not clarified in line with the duty of candour."
First main issue: the rejection of the generality of Mrs Hossack's tenders
"The ITTs set out a number of key contract terms (known in the ITTs as the 'Essential Criteria') which an Applicant Organisation must demonstrate that it is able to meet in relation to the services that it is tendering for. Detailed wording on each of the Essential Criteria is set out in each ITT and at Annexes A-E."
Para 7.26 identifies contains a table setting out common requirements. In relation to community care services, the first entry is "Must have at least a Part-time Presence in the Procurement Area". Later, at paras 13.5-13.6, the IFA states:
"13.5 The Essential Criteria reflect the minimum service requirements that each Provider delivering the Services tendered for must meet at each Office.
13.6 All Essential Criteria will be assessed on the basis of pass or fail and any Applicant Organisation unable to confirm that they meet all our requirements (for each Office and Category of Law) will have their tenders assessed unsuccessful."
"11.9 Some answers to PQQ questions will be assessed on a pass/fail basis and do no offer an opportunity for Applicant Organisations to give further exceptional circumstances. In relation to these types the requirement to have the required experience is absolute and is a mandatory ground for failing the PQQ.
11.10 Other questions on the PQQ provide an opportunity to set out exceptional circumstances where an Applicant Organisation considers that it cannot meet the requirements but that exceptional circumstances apply which mean that the Applicant Organisation should be considered by us as still meeting the PQQ requirement."
Second main issue: the rejection of the tender in respect of Northamptonshire
Lord Justice Tomlinson:
Lord Justice Ward :