QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of the Law Society)
|- and -
|Legal Services Commission
The Lord Chancellor and the Secretary of State for Justice (formerly the Secretary of State for Constitutional Affairs)
Dexter Montague & Partners (a firm)
Legal Services Commission
Mr Robert Jay QC and Mr Rhodri Williams (instructed by the Legal Services Commission and the Treasury Solicitor) for the Defendant and Interested Party
Hearing dates: 26th and 27th June 2007
Crown Copyright ©
Beatson J :
The legislative and regulatory framework
(a)The Access to Justice Act 1999
(b) Directive 2004/18/EC of 31 March 2004 and the 2006 Regulations
"(1) the obligation on
(a) A contracting authority to comply with the provisions of these
(b) A concessionaire to comply with the provisions of Regulation 37(3);
is a duty owed to an economic operator." ..
(6) A breach of a duty owed in accordance with paragraph (1) .. is
actionable by any economic operator which, in consequence, suffers, or
risks suffering, loss or damage and those proceedings shall be brought in the
(7) Proceedings under this regulation must not be brought unless
(a) the economic operator bringing proceedings has informed the contracting authority or concessionaire, as the case may be, of the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) . by that contracting authority or concessionaire and of its intention to bring proceedings under this regulation in respect of it; and
(b) those proceedings are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the court considers there is good reason for extending the period within which proceedings may be brought.
(8) Subject to paragraph (9) but otherwise without prejudice to any other powers of the court, in proceedings brought under this regulation the court may-
(a) by interim order suspend the procedures leading to the award of the contract in relation to the award of which the breach of the duty owed in accordance with paragraph (1) . is alleged, or suspend the implementation of any decision or action taken by the contracting authority or concessionaire, as the case may be, in the course of following such a procedure; and
(b) if satisfied that a decision or action taken by a contracting party was in breach of the duty owed in accordance with paragraph (1)
(i) order that the setting aside of that decision or action or order the contracting authority to amend any document;
(ii) award damages to an economic operator which has suffered loss or
damage as a consequence of the breach; or
(iii) do both of those things.
(9) In proceedings under this regulation the court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) if the contract in relation to which the breach occurred has been entered into."
The process leading to the adoption of the Unified Contract
The Unified Contract
"Subject to the provisions of this clause 13 [the LSC] have the right to amend the Contract Documents from time to time if, (i) we consider it necessary or desirable to do so in order to facilitate a Reform of the Legal Aid Scheme, or (ii) our proposed amendments have been approved by consultative bodies, or (iii) our proposed amendments are permitted under clause 13.2 or any other provision of this contract authorising us to make amendments".
"such reforms as [the LSC] may wish to implement in order better to comply with our statutory duties or fulfil our statutory functions" including (a) such changes as we wish to make, or as are related to, the CLS, CDS, or both, consequent on or related to, the paper "Legal Aid Reform: The Way Ahead" Cm 6993; or (b) new approaches to procurement and contracting for the provision of publicly funded legal services".
"(a) amendments to any of the terms of a Schedule;
(b) changes to payment provisions;
(c) imposing controls not previously imposed;
(d) excluding from this Contract any description of Contract
(e) amending procedures in the Specification."
"Except for amendments made under any other provision of this contract authorising us to make amendments, we may not amend either the Contract for Signature, the Contract Standard Terms or the Specification without prior consultation in accordance with this clause."
Clause 13.4 states that where a proposed amendment affects only one supplier,
the LSC will consult that supplier. Otherwise it will consult with representative
Discussion and Conclusions
"the central flaw in the Law Society's case is that it seeks to apply rules which were developed for the purpose of ensuring a transparent public contract award procedure in order to achieve altogether different aims: dictating the substantive content of a contract entered into after the carrying out of a transparent level of consultation which fully meets the requirements of the [2006 Regulations], and freezing the evolution in policy regarding legal aid".
"implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear precise and unequivocal manner in the notice or contract documents 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."
(a) Is the Unified Contract a Public Service Concession?
(b) Does the Unified Contract satisfy the requirement of transparency in regulation
"Should the contracting authority wish, for specific reasons, to be able to amend some conditions of the invitation to tender, after the successful tenderer has been selected, it is required expressly to provide for that possibility, as well as for the relevant detailed rules, in the notice of invitation to tender which has been drawn up by the authority itself and defines the framework within which the procedure must be carried out, so that all the undertakings interested in taking part in the procurement procedure are aware of that possibility from the outset and are therefore on an equal footing when formulating their respective tenders."
(c) Does the Unified Contract satisfy the requirements of regulation 9?
"Technical specifications define the object of the contract in precise terms, they enable interested undertakings to assess whether to present a bid and they provide contracting authorities with the technical parameters to assess in relation to their needs the various offers presented. It clearly follows from their very nature that they must be established prior to the selection of a contractor."