QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HOSSACKS (A firm of Solicitors)
|- and -
|THE LEGAL SERVICES COMMISSION
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Fiona Scolding (instructed by Legal Services Commission) for the Defendant
Hearing dates: 28 September, 2011
Crown Copyright ©
The Honourable Mr Justice Blake:
i) The claimant is a specialist provider of community care services based in Northamptonshire with a small number of staff under the supervision of its principal, Mrs Hossack.
ii) The claimant bid in 2010 in a competitive tender for the award of community care legal services contract in 125 geographical areas of England and Wales.
iii) It did so even though it was a requirement of the competition that the bidder would at least have a part-time office in each area where services were services were to be delivered.
iv) For each contract area for which the claimant made a bid it submitted a pro forma containing identical information.
v) Each tender was completed using a invitation to tender form specific to Wiltshire and that was accordingly pre-populated in the defendant's electronic tendering form with the title Wiltshire, albeit this was not known to the claimant. She should have chosen the tender form for each specific area, there may have been different requirements for different areas.
vi) There were different requirements as to whether the need for an authorised litigator was part of the essential or selection criteria under the terms of the IFA. This depended upon whether the firm was bidding in service areas A or B.
vii) The claimant did not complete the part of the form requiring her to identify the location of her office, and this was the case even for the form submitted in respect of Northamptonshire where she did have an office.
viii) The claimant's office in Northamptonshire was a full time one, but for the Northampton bid (as indeed for every other) the claimant stated that it proposed to operate a part time office. Its intentions were to service claimants throughout the jurisdiction by attending on them as and when necessary. This intention might have been accommodated by a single Northampton bid, which if successful would have enabled her to open cases from outside the county as well if the claimant had the staff capacity to do so.
ix) The defendant would have been aware that the claimant maintained a full time office in Northamptonshire from extraneous information, namely previous dealings with the firm and the fact that it had submitted its office handbook to the defendant in connection with a quality mark award.
i) Was it unreasonable/disproportionate for the defendant to reject the claimant's tender for Northamptonshire?
ii) Was it unreasonable/disproportionate for the defendant not to seek to clarify the claimant's tender given the nature of the mistake made?
iii) Has the defendant acted inconsistently in refusing to permit amendments of the claimant's tender while permitting clarification in other respects of the civil tendering process?
The Tender Specifications
i) The application process for a specialist quality mark (SQM) is dealt with separately to the tender process as it is a condition of contract award and not part of the PQQ or the ITT response (IFA 6.6 and 10.2).
ii) An individual bid means the services in a category of law that an applicant of has tendered to deliver from a particular office in a procurement area or access point (10.3 IFA).
iii) The relevant form should be downloaded and completed with details of each supervisor who is currently in post to deliver the services of the applicant that is tendering to deliver in the procurement area (12.6 IFA).
iv) The bid must provide for information on the number of matters starts the applicant will deliver from each office in the procurement area; each office must tender for at least a minimum number of matter starts meeting the essential criteria; bids could not be for more than the maximum capacity of the applicant calculated by reference to the number of matter starts that could be processed weekly by a full time equivalent (FTE) member of staff delivering the service. One FTE equated to approximately 35 hours per week (12.20 and 13.9 IFA).
v) Applicants must certify that the declarations they have completed and submitted contain accurate information and are up to date (12.29 IFA).
i) Submission of a tender which fails to comply with any terms and condition of tender, user agreement or other rules conditions shall without affecting the applicant organisation's liability for non compliance entitle the LSE to reject a tender. In the case of a contract awarded in breach of these terms the defendant is entitled to cancel the contract or not proceed further with it (15.2).
ii) Any conflict between the information given on documents submitted as part of the tender conflict will be resolved by accepting the information answer or document least favourable to the applicant organisation (15.15)
iii) The applicant must reply to all the questions in order to respond to PQQ and ITT even if it is previously provided this information or if it thinks that the LSE is already aware of it (15.19).
iv) The applicant must not submit for tender any information which the applicant knows or has reason to be false or misleading if information is subsequently found to be false or misleading it may lead to the applicant tender being unsuccessful (15.20).
v) A tender will be unsuccessful where following assessment the applicant
a) Does not pass the PQQ;
b) Does not pass the essential criteria; and or
c) Has its tender ranked lower than other tenderers following application of the selection criteria. (15.26).
"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 may well include a reasonable opportunity to correct obvious errors without changing the fundamental nature of bid submitted… However, any such duty is severely circumscribed when there a competitive tender and a over-riding duty to treat all tenderers equally. Here for reasons that were not the responsibility of the defendant, the claimant failed to supply the information that would have led them to being rank in priority were there was competition for the award of NMS. 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 individual applicant an opportunity to amend the bid and improve his prospects of success in the competition after the submission date has passed".
Mrs Hossack did not suggest that this observation was wrong. Nevertheless, I would accept that if in fact the defendant chose to contact tenderers to clarify and amend bids outside the terms of the conditions of contract, a public law challenge could be made if a similar facility was not extended to all other tenderers in the same circumstances.
i) The fact that there is an alternative remedy for damages for breach of the Public Contract Regulations in the Chancery Division does not necessarily preclude recourse to judicial review where a public law issue arises, and it was for this reason that the Court of Appeal granted permission where Mitting J would have refused it.
ii) The fact that the claimant firm had received an adverse peer review assessment under a previous LSC contract is irrelevant to the present proceedings since it was not a confirmed review that might have made the claimant ineligible for an award of a contract.
iii) Although the form submitted by the claimant was for a different procurement area, both Wiltshire and Northamptonshire were category B procurement areas and so there was no material difference as to the information to be supplied.
iv) There is no other provider of community care services in Northamptonshire, and there are a number of new matter starts held in reserve by LSC for that area. If the claimant made out its case that it had been treated unfairly in not being considered eligible for an award on the basis of a part-time office in Northamptonshire, and did not consider that the principle of equality would prevent to the defendant from offering a claimant some new matter starts as a consequence.
v) A decision dated 5 July, 2010 explaining the rejection of the tender bids indicated that the reasons for the rejection meant that there was no right of appeal under the contract terms. The circumstances where there is or there is not a right of appeal do not appear to be material in this case, as the claimant's firm was afforded an internal review on receipt of her reasons for dissatisfaction, and the issues of law upon which the claimant relies are being determined in this court.
With this preamble it is time to address the three questions on which this application depends.
Question 1 Was it unreasonable for the defendant to reject the claimant's tender for Northamptonshire?
Question 2: Was it unreasonable for the defendant not to seek to clarify the claimant's tender given the nature of the mistake made?
Question 3: Has the Defendant Acted Inconsistently?
i) A letter of the 18 March, 2010 to a firm of solicitors in the Immigration Services tender seeking clarification of inconsistencies between answers given in the essential criteria question and the tender information form as to the post code for a permanent presence in the London area.
ii) A letter of the 16 March, 2010 to different solicitors in the same tender inviting observations on two different expressions of the number of the new matters starts being bid for between the TIF and Commercial response.
iii) A letter of the 21 May, 2010 to a firm tendering in the Social Welfare and Law and Family Services tender as to inconsistencies in the number of matter starts being bid for between the essential criteria and the TIF and the absence of details of staff members in the particular post code area by which such services would be delivered.
iv) Some examples where the defendant communicated with tenderers seeking clarification of answers suggested that they did not meet the regulatory conditions for being eligible to tender under the PQQ, for example by reason of financial irregularity or disciplinary measures when other information suggested that they were so qualified.