QUEEN'S BENCH DIVISION
2 Park Street, Cardiff, CF10 1ET
B e f o r e :
| R (on the application of Hoole & CO (a firm)
|- and -
|LEGAL SERVICES COMMISION
Paul Nicholls (instructed by Legal Services Commission) for the defendant
Hearing dates: 17, 18 March, 2011
Crown Copyright ©
The Honourable Mr Justice Blake:
The Factual Basis of the Claim
The claimant's case
i) There was no system error in the defendant's computer causing it to delete information that had previously been published to it.
ii) It was not possible on the configuration that was adopted for this particular portal for a printout to differ from the information recorded and saved electronically. There could be no divergence between what had been saved on screen and printed out.
iii) It was possible technically to require the selection criteria part of the form to be completed and prevent an applicant from completing the submission without first populating the material columns in a row for which a bid was being made. The defendant had chosen not to activate this system as it was not necessary to make a bid for any row or indeed a legal requirement to submit any of the criteria for which points could be awarded in a competitive process. In addition, Mr Quinn considered the online and other instructions sufficiently informed any applicant of what the position was.
iv) There had been technical problems earlier in the tendering window about the compatibility of certain kinds of word processing software and internet service providers. Advice had been given by the technical support team how to navigate through this problem. Mr Widdows thought this made the software user-unfriendly.
"The Court holds that the power set out in section 19.5 of the Instructions to Tenderers must, notably in accordance with the Community law principle of good administration, be accompanied by an obligation to exercise that power in circumstances where clarification of a tender is clearly both practically possible and necessary…. While the Commission's evaluation committees are not obliged to seek clarification in every case where a tender is ambiguously drafted, they have a duty to exercise a certain degree of care when considering the content of each tender. In cases where the terms of the tender itself and the surrounding circumstances known to the Commission indicate that the ambiguity probably has a simple explanation and is capable of being easily resolved, then, in principle it is contrary to the requirements of good administration for an evaluation committee to reject a tender without exercising its power of clarification".
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 v Devon County Council  EWHC 930 (Ch) at  to , approved by the Court of Appeal in Azam v Legal Services Commission  EWCA Civ 1194.
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 is affair, 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.
"We would only exercise discretion if it is apparent on the face of the application that something important was missing or there was an inconsistency".
"There is a world of difference between a tender which is complete, unambiguous, and contains no inconsistencies, as to which there is no scope for seeking further information or clarification, and one which is incomplete or with inconsistencies which may need to be resolved".