QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
All About Rights Law Practice
|- and -
|Legal Services Commission
Mr Paul Nicholls (instructed by Anthony Lawrence on behalf of the Legal Services Commission) for the Defendant
Hearing dates: 30th March, 31st March and 1st April 2011
Crown Copyright ©
MR JUSTICE DAVIS :
"RE: Invitation to tender to deliver publicly funded Mental Health Services in Strategic Health Authorities in England and Wales
Further to what is said below your tender for the above services has been rejected because you submitted a blank Tender Information Form (TIF) in response to the Invitation to Tender (ITT).
As part of the process for tendering to deliver Mental Health Services all Applicant Organisations were required to complete a response to the to the [sic] ITT, including a complete TIF, which was a Mandatory Form, through the eTendering System in accordance with paragraph 11.7 of the Information for Applicants (IFA) document. Whilst we received a response from you to the Pre-Qualification Questionnaire (PQQ) and the ITT questions, we have no record of receiving a completed TIF for your organisation prior to the deadline of 12 noon 31 March 2010.
Accordingly, we are unable to take your tender forward and it has been rejected.
Pursuant to paragraph 10.22 of the IFA, there is no right of appeal in these circumstances."
"Tender to Deliver Publicly Funded Mental Health Services
Thank you for your letter dated 28 June 2010
Further to what is said below, I can confirm that the LSC is unable to progress your tender to deliver Mental Health services further.
The information, instructions, rules, conditions of contract award and Terms and Conditions of tender relating to the tendering process to deliver Mental Health services are set out in the Information for Applicants ("IFA") which was made available to all current and potential providers of these services.
Section 4 IFA makes it clear that a valid tender response consists of the following:
- Pre Qualification Questionnaire
- Response to ITT Including the Tender Information Form ("Mandatory Form")
As specified in section 10.22 of the IFA there is no right of appeal where a valid tender response was not submitted prior to the deadline of 12 noon on 31 March 2010, however, I have reviewed the eTendering records and I am satisfied, as a matter of fact, you did not submit a completed Tender Information Form before the deadline referred to above.
I am, therefore, satisfied that your tender was validly rejected under the rules of the tender process.
I am also satisfied that the LSC has conducted the tender in accordance with the relevant law, and in particular the Public Contracts Regulations 2006, in so far as they concern Part B services contracts. In this context the Commission's obligations are broadly that it treats economic operators equally and that it acts in a transparent way. I do not accept that the process was flawed as you assert in your letter. In the context of a tender where there is direct competition for a limited number of matter starts, I hope that you will accept that we have to insist on these requirements in fairness to other tenders.
Section 11.11 of the IFA states
"It is the responsibility of the Applicant Organisation to make sure that a tender is fully and accurately completed (including any Mandatory Forms). The LSC is under no obligation to clarify its tender or to obtain missing information or Mandatory Forms."
Whilst I do have sympathy for your situation having regard to the circumstances set out above I confirm the decision."
i) The terms of the Information for Applicants (a document 45 pages in length, excluding Annexes); and
ii) The Public Contract Regulations 2006, which came into force on 31st January 2006 and since amended.
"Secondly, a waiver of terms which are stated as applying without exception is a departure from the terms of the procurement process and is therefore an exceptional course. A waiver of such terms carries the very risks of unequal treatment, discrimination and a lack of transparency which the contracting authority is required to avoid. It is to be noted that the Commission's action under review in Tideland Signal involved a failure to exercise an express power under the invitation to tender, not a failure to waive express terms."
"67. As well as the deadline, the other key elements of submitting tenders, such as the requirement for a single submission and the lack of provision for changes to submitted tenders, were clear and well understood by the claimants, as their witnesses' evidence made clear. Fairness to all tenderers, as well as equal treatment and transparency, required that these key features should be observed.
68. There may be circumstances where proportionality will, exceptionally, require the acceptance of the late submission of the whole or significant portions of a tender, most obviously where, as noted by Professor Arrowsmith, it results from fault on the part of the procuring authority. But in general, even if there is discretion to accept late submissions, there is no requirement to do so, particularly where, as here, it results from a fault on the part of the tenderer. In addition to the considerations already mentioned, the particular facts on which the claimant relies to characterise its case as exceptional would require investigation and determination by Devon CC and I do not see that it was required to undertake those tasks. In my judgment, the decision of Devon CC to reject the claimant's tender was well within the margin of discretion given to contracting authorities."
"But that analysis ignores the weighty reasons to be considered in the balance against the grant of a week's extension. First, the immigration tender process had been published expressly on the basis that deadlines were there to be complied with, and that no extensions would be given. Secondly, the grant of an extension to the firm, occasioned by a failure to submit a tender on time which was by no means beyond its control, would run the grave risk of constituting unequal treatment of other tenderers. In particular, it would be likely to be regarded as unfair by tenderers who would have wished for longer time in which to perfect their tenders, but who nonetheless completed them on time and, in reliance on the warning that extensions would not be granted, sought no further time for themselves. Thirdly, it seems to me that the principles of transparency and good administration weigh very heavily in the balance against an applicant for an extension of time who is unable to point to reasons beyond his control by way of justification."
Pill LJ made further comments to like effect at paragraphs 36 and 37 of his judgment, noting also (at paragraph 38) that to grant an extension "may well affect adversely the position of other tenderers".
"The essence of a competition by way of tender such as that in question is to provide all competitors with an equal opportunity to make their case. It is obviously essential to that end that all the competitors should have to work to the same deadline and it will obviously be perceived to be, and in fact be, unfair for the Commission then to change the rules so as to allow those who carelessly failed to meet the deadline to make late bids "
Sullivan LJ agreed with both judgments.
" Here I consider the applicants had an equal opportunity to make good their case for a legal aid contract. They availed themselves of that opportunity, but, through their own error, have not taken full advantage of that opportunity. That is a sadly regrettable outcome, but I do not think the LSC can be criticised for having applied the conditions of the tender. On the contrary, they would have exposed themselves to criticism had they acted otherwise. At all events, their decision to apply the conditions strictly is not manifestly wrong."
The Information for Applicants
"The Tender Information Form is the only Mandatory Form, which must be submitted with the applicable ITT in order for a tender to be completed..."
Then in 9.7 the procedure for bidding for matter starts is set out, amongst other things, saying "you must confirm on the [TIF] the number of matter starts that you are tendering to deliver from each Procurement Area ". Then at section 9.14 are outlined steps that an applicant "must follow" in order to tender. Section 9.15 again states that a tender will consist of responses to the "(1) PQQ and (2) ITT which includes the Mandatory Form (Tender Information Form) ". In section 9.16 further details are given as to what must be completed on a TIF. This is in effect repeated at section 9.37. Sections 9.22 and following relate to PQQs. This is said at 9.26 and 9.27:
"9.26 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.
9.27 It is the Applicant Organisation's responsibility to ensure that it makes full use of this opportunity in order to provide comprehensive details of any exceptional circumstances. We are under no obligation to seek further information or clarify a response and will not do so where in our opinion this would give an Applicant Organisation an unfair opportunity to improve their response."
"9.55 Responses to ITTs submitted will be treated as sealed bids. This means that the LSC will not open any responses until after the deadline for the tender exercise.
9.56 Applicant Organisations can therefore amend and resubmit their responses to the ITTs up until the closing date for tenders to be submitted.
9.57 Responses will be automatically acknowledged when they are published for the first time. There will be no acknowledgement of resubmitted responses where Applicant Organisations amend and republish their response to an ITT. We will assess the latest published response."
"10.20 A completed tender will consist of (1) a response to the PQQ and (2) a response to an ITT (including the Mandatory Form) submitted prior to the deadline of 12 noon on 31 March 2010.
10.21 Where a tender (or any part it) is unsuccessful or rejected, the Applicant Organisation will be given written reasons as to why it was unsuccessful or rejected.
10.22 There will be no right of appeal against a decision to reject a tender if it is incomplete or if a tender (or any part of it) is received after 12 noon on 31 March 2010 (or after any deadline set by a request for clarification or further information) or is not received by the LSC at all."
A right of appeal is given under 10.23 if, among other things, an applicant does not pass the PQQ or the Essential Criteria. It is common ground before me that, in the circumstances, AAR had no right of appeal.
"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.
11.7 For a tender to be complete, the Applicant Organisation must, prior to the deadline, submit a tender consisting of (1) a response to the PQQ and (2) a response to an ITT (including the Mandatory Form).
11.8 The Applicant Organisation must not amend or alter any document comprising part of the tender after the deadline.
11.9 After the deadline any information or documents submitted in response to a request for clarification or further information (in accordance with paragraph 11.25) will also form part of the Applicant Organisation's tender.
11.10 In the event of any conflict between the information, answers or documents submitted as part of a tender, the conflict will be resolved by accepting the information, answer or document least favourable to the Applicant Organisation.
11.11 It is the responsibility of Applicant Organisation to make sure that a tender is fully and accurately completed (including any Mandatory Forms). The LSC is under no obligation to contact the Applicant Organisation to clarify its tender or to obtain missing information or Mandatory Forms
11.19 A tender will be rejected if it (or any part of it) is submitted after the deadline nor will the LSC consider (1) requests to submit the tender (or any part of it) after the deadline or (2) requests for an extension of the time or date fixed for the submission of the tender (or any part of it).
11.25 Should the LSC, at any time during the tender process, request the Applicant Organisation to give additional information/clarification the Applicant Organisation should be prepared to provide additional information and/or clarify any aspect of a tender by the deadline set out in the request. The LSC reserve the right to validate any part of the Applicant Organisation's tender and information subsequently given to it."
Section 11.25 has loomed particularly large in the arguments advanced by Mr Speaight. Mr Nicholls, for his part, placed considerable focus on sections 11.7, 11.8, 11.9, 11.11 and 11.19.
i) The LSC was obliged, by reason of the obligations of proportionality and good administration derived from the Public Contracts Regulations 2006, to draw to the attention of AAR the omissions in its tender and / or to give it an opportunity to remedy that omission.
ii) Even if the LSC was not so obliged, then at all events it had a discretion to do so but failed to exercise such discretion at all or did so without taking all relevant factors into account.
iii) The "policy" of the LSC in dealing with incomplete tenders or in seeking clarification or additional information (as outlined in the witness statement dated 28th January 2011 of Mrs Kerry Wood, Head of Contract Commissioning of the LSC) was irrational or arbitrary or in breach of the applicable principle of equality of treatment.
These grounds were advanced as separate grounds although it was acknowledged that there was some degree of overlap between them.
Discussion of Issues
"-Where staff were named by multiple organisations. (I give an example of this at paragraph 10 below.)
-Where the volume of matter starts tendered for did not meet the minimum matter start size that providers had indicated they would meet in response to the Essential Criteria. If a bidder provided information about staffing which showed that they could undertake the minimum required number of matter starts and if they stated that they could meet that minimum but then in fact tendered for less than the minimum, we have sought to clarify. The basis for this was an internal contradiction in the information provided. The bidder had provided all the information necessary to show that they could carry out the minimum number of new matter starts but their bid was for less than that minimum. The LSC then sought to resolve that contradiction. This did not allow the bidder to supply and additional information; the LSC would only seek clarification when the information supplied led to the contradiction. Also no clarification was sought when the information supplied made it plain that the bidder could not undertake the required minimum number of matter starts (as was the case with Ashford CAB). The LSC would not permit bidders to supplement the information they had given.
-When an incomplete postcode was provided. The postcode had been provided but we need the full postcode in order to work out where a provider is based. This would not allow the bidder to alter its bid.
-Where attachments were received in a corrupted format that could not be opened."
She amplified the last point by saying that that connoted a technical issue connoting no error on the applicant's part and evidence was required by the LSC that the document had not been produced after close of the deadline (she contrasted this with AAR, where there was no such corruption). Mrs Wood went on to say: "In no clarification did we allow applicants to improve information previously submitted the LSC never seeks clarification in circumstances which could confer such a benefit". She went on further to emphasise that in no instance did the LSC seek clarification where no response whatsoever was provided to a question.