QUEENS BENCH DIVISION
B e f o r e :
(sitting as a Judge of the High Court)
| THE QUEEN on the application of
HARROW SOLICITORS AND ADVOCATES
|THE LEGAL SERVICES COMMISSION
Clive Rawlings (instructed by the Legal Team, Legal Services Commission) for the Defendant
Hearing dates: 11 and 12 April 2011
Crown Copyright ©
The Tender Process
"Preference will be given to Applicant[s]..that will commit to deliver at least one regular and advertised Drop-in Service Session per week available to Immigration clients from the Office.."
and the Scoring System note against that said:
"Marked out of 2.
Able to deliver at least one Drop-in Service per week from the Office..(2 points)
Unable to deliver at least one Drop-in Service per week from the Office..(0 points)"
"5. A Regular Drop-in Session per week"
"11.2 Submission of a tender which fails to comply with any Terms and Conditions of Tender, User Agreement or other rules, conditions of contract award and instructions shall, without affecting the Applicant Organisation's liability for non compliance, entitle the LSC to reject a tender, assess the tender as unsuccessful and/or entitle the LSC not to proceed with any decision made to award the Applicant Organisation a Contract or entitle the LSC to terminate the contract pursuant to Clause 25 of the Standard Terms.
11.6 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.
11.8 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.
11.20 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. 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.
11.23 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."
"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:...
(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 consider that the tender rules...are very clear that it is the Applicants responsibility to submit an accurate tender. The LSC is entitled to assess tenders on the basis of the information directly provided by the Applicant.
I consider that allowing the Applicant to amend its tender response at this stage would be allowing it to improve its tender, and in the context of the Selection Criteria stage of a competitive tender process, would not be fair on other Applicants."
The Public Contract Regulations 2006 ("the Regulations")
"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."
19. Paragraph 47 provides as follows:
"(1) 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...
(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."
Analysis of the main issue
Adia Interim v. Commission of the European Communities  3 CMLR 849
Resource Management Services v. Westminster City Council  2 CMLR 849
Antwerpe Boukewewerken v European Commission T-195/2008
"..where a tender has been drafted in ambiguous terms and the circumstances of the case, of which the [Defendant]..is aware suggest that the ambiguity probably has a simple explanation and is capable of being easily resolved.. in principle it would be contrary to the requirements of sound administration for the [Defendant]..to reject the tender in such circumstances without exercising its power to seek clarification...(see Tideland Signal v Commission  ECR II3781 paras. 37 and 38) " [paragraph 56]
..the principle of proportionality requires that ..when the contracting authority is faced with an ambiguous tender and a request for clarification of the terms of the tender would be capable of ensuring legal certainty in the same way as the immediate rejection of that tender the contracting authority must seek clarification from the tenderer concerned rather than opt purely and simply to reject the tender.." [paragraph 57]
"..where a tender is ambiguous and the Commission is not in a position to establish, quickly and efficiently what it actually means, that institution has no choice but to reject the tender." [paragraph 58]
(1) All tenderers must be treated equally;
(2) It would violate that principle and the principle of good administration in the tendering process if any tenderer were permitted to change its bid after bidding had closed;
(3) If the awarding authority had a discretion to seek clarification about a bid from the tenderer, the Court would not normally interfere with the exercise of that discretion unless (a) it was exercised unequally or unfairly across the relevant bidders or (b) it was not exercised, yet it appeared to the awarding authority that there was an ambiguity or obvious error which probably had a simple explanation and could be easily resolved; seeking clarification in the latter case was required in order that consideration of what might be an advantageous bid should not be excluded; it would be for the awarding authority to determine whether the clarification exercise would be simple or not;
(4) But any purported clarification must not amount to a change in the bid.
Leadbitter v Devon County Council  EWHC 930
JR Jones v Legal Service Commission  EWHC 3671 (Ch)
"..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 evidence 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."
Hoole & Co v Legal Services Commission  EWHC 886
"Although paragraph 11.8 of the defendant's IFA gave it the right to seek additional information/clarification, I conclude that Tideland cannot assist the claimant in the present because:
i) There was no ambiguity in the bid, simply an uncompleted section of the form. Although some parts of the data required to score points might have been culled from information provided elsewhere in the bid, not all of the information that the claimant needed to supply to gain 51 points could have been so derived. The LSC could have identified that the claimant's firm was a qualified solicitor's practice based at an address in Bristol, but other information it had supplied elsewhere was subtly distinct from the questions asked in the selection criteria part of the form. The provision of information relevant to the selection criteria and the non-completion of that part of the application form, did not constitute an ambiguity that the defendant was bound to inquire into.
ii) The exercise of the power of inquiry did not arise in circumstances where the imprecision of the tender terms or the defendant's subsequent conduct required it to exercise the power. The defendant had not caused the claimant's failure to provide the relevant material.
iii) An overbroad exercise of the power to seek clarification would be contrary to the principle of equality and fair treatment of all tenderers. The CFI acknowledges this limit at
 in Tideland and a similar emphasis has been attached to this principle in the decision of David Richards J in Leadbitter... approved by the Court of Appeal in Azam..
iv) It would be unfair to rival tenderers for the defendant either to have allowed the claimant to amend its application by completing it, or to fill in the selection criteria on behalf of the claimant from information that might have been available to it extraneously. Paragraph 11.6 of the IFA makes clear it is the responsibility of applicants to make sure all tenders are fully and accurately completed and there is no obligation on the defendant to obtain missing information or documents. Paragraph 11.7 explains that information already provided to the LSC in a previous contract could not be used to populate the PQQ and ITT "to ensure that we can assess each tender in a fair, like for like and reasonable manner". Paragraph 11.23 indicates that applicants must not amend or alter any document comprising part of their tender after the closing time and date. All tenderers would expect those rules to be consistently applied."
"Viewed entirely from the point of view of a public law duty to act fairly, it may well be that the exercise of a discretion to grant a benefit should be based on all matters that could or should be known to the authority, and that fairness might well include a reasonable opportunity to correct obvious errors without changing the fundamental nature of the bid submitted. It is after all in the public interest that a well-qualified and experienced provider of legal services in the field of immigration should be permitted to continue in business. However, any such duty is severely circumscribed where there is a competitive tender and an over-riding duty to treat all tenderers equally. Here for reasons that were not the responsibility of the defendant, the claimant had failed to supply the information that would have lead them to being ranked in priority where there was competition for the award of [new matter starts]...Any general duty to give an applicant an opportunity to correct errors in the absence of fault by the defendant, yields to the duty to apply the rules of the competition consistently and fairly between all applicants, and not afford an individual applicant an opportunity to amend the bid and improve its prospects of success in the competition after the submission date had passed."
AAR v Legal Services Commission  EWHC 964
"Regrettably, as I have found, the mistake here was that of AAR and AAR alone. Under the terms of the Information for Applicants, it was obliged to gets its completed forms in before the deadline and failed to do so. There can be no good reason, under the principles of equality of treatment or proportionality, for permitting it to put in a complete TIF – for that is what the additional information would in reality amount to even if some aspects could be gleaned elsewhere from the PQQ or ITT -after the deadline. Indeed to do so would run counter to the whole tender process and would be unjust to other tenderers, bound by the same terms and who had made no such mistake."
The Approach taken by Arrowsmiths' Law of Public Utilities Procurement
Irrationality and proportionality in this case
(1) At the essential (non-competitive) criteria stage the LSC checked the accuracy of those tenders where it was stated that the firm concerned had been the subject of confirmed peer review ratings of 4 or 5 which was a disqualifying factor; the LSC was able to check this because it had the underlying records. A confirmed rating meant after appeals etc and the LSC discovered that this was not always understood so that some firms might have been in effect disqualifying themselves wrongly; in 9 cases, this had happened. See paragraphs 3 – 12 of her witness statement; I do not regard this as a change to the bid or something which offends against the principles set out above;
(2) At the selection stage, firms gained 5 points if they had a level 5 caseworker and if so they were expected to identify who it was on the staff information section of the bid. The LSC wanted to verify such information as it was entitled to do under paragraph 11.8 referred to above. If no name was given it had to contact the firm concerned to get it. If a firm could not confirm the identity of that person the bid was remarked to remove the 5 points claimed. That was done to prevent a false claim in the bid. See paragraphs 13 – 20 of the witness statement. I do not see how that process begins to constitute permitting tenderers to change their bids.