Hoole & Company (R) v Legal Services Commission
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 15 April 2011 |
| Neutral Citation | [2011] EWHC 886 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 April 2011 |
| Docket Number | Case No: CO 11589/2010 |
[2011] EWHC 886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
The Honourable Mr Justice Blakes
Case No: CO 11589/2010
Rhodri Williams QC (instructed by Hoole and Co) for the claimant
Paul Nicholls (instructed by Legal Services Commission) for the defendant
Hearing dates: 17, 18 March, 2011
On the 27 th January, 2010 the claimant firm submitted its tender to the defendant Commission to bid for a contract for new matter starts (NMS) in the field of immigration and asylum law in the geographical area of Bristol. The deadline for submission of such a tender was the 28 th January and the successful bidders were to be awarded contracts from November 2010. This was a competitive tender governed by the Public Contracts Regulations 2006 and the general principles of law derived from the Treaty on the Functioning the European Union (TFEU).
To participate in this competition it was necessary for each bidding firm to submit its tender by providing the information required on the defendant's internet based electronic portal. The claimant had previously held a contract for provision of immigration legal services and its accredited immigration supervisor and head of its immigration department was Mr Khalid Khashy. It was Mr Khashy who completed the claimant's bid on the 27 th January.
On the 28 th June 2010 the defendant informed the claimant that its tender was rejected as it had been awarded insufficient points to be given priority ranking amongst eligible firms in the Bristol area where there was an excess of bidders for the NMS to be awarded. The claimant appealed on the 7 th July 2010 and submitted in support of its appeal detailed reasons why it qualified for 53 points rather than the five points awarded. By the time of the hearing it was acknowledged that the highest number of points that could have been claimed on the information either provided or intended to be provided was 51. The lowest bidding successful tenderer had been awarded 49 points, and therefore if the claimant firm were entitled to all the 51 points it contended for it should have been awarded the contract for the NMS in question.
On the 5 th August 2010 the defendant refused the appeal explaining that in the claimant's submission on the 27 th January no entries were recorded in the tender application on that part of the form that would be used for awarding points that would form the basis of priority ranking. The fact that the claimant firm had been awarded five points was because the defendant's computer had been able to populate one part of that form automatically from information supplied elsewhere even though the claimant had provided no information.
On the 5 th November 2010 after exchange of correspondence on the issue this application for Judicial Review was lodged and in due course following a number of case management directions by judges sitting at the Cardiff Civil Justice Centre a rolled up hearing for permission and substantive relief if permission is granted was listed for hearing over two days on 17 and 18 March 2011. The contracts for the successful tenderers were awarded on 14 November 2010. On 11 February 2011 this Court granted interlocutory relief requiring the defendant issue a limited number of new matter starts to the claimant pending the hearing of the claim. It was further directed that a number of the witnesses for either side should be made available for cross examination and that the claimant had leave to call Mr Gary Widdows an expert witness on the computer technology relevant to the electronic portal bidding system used for this contract. In the event I heard all evidence from Mr Khashy and Mr Widdows for the claimant and from Mr Amadife, Mr Bryant, Miss Ward, Miss Wood, all members of the defendant's staff, for the defendant. In addition I heard from Mr Quinn of Bravo Solutions, the firm that designed and managed the defendant's e-Tendering portal and had extensive experience in providing electronic tender tools for the UK government.
I reserved my decision at the conclusion of the hearing but I did not extend the injunctions requiring the defendant to continue to provide new matter starts pending delivery of this judgment. I have reached the conclusion that this claim fails on the merits. I now give my reason for reaching this conclusion.
The Factual Basis of the Claim
The defendant's e-Tendering procedure required those who submitted a tender to provide a variety of information through its internet portal and such information was to be provided in a number of different ways. The first part of the form was a pre qualification questionnaire (PQQ) to demonstrate that the tenderer had sufficient financial and technical capacity to be able to provide the services and it was not excluded from doing so for misconduct and related reasons. This part of the form could be answered by completing questions in a box. The next part of the form was an invitation to tender that was divided into two broad areas. The first was the technical envelope 'essential criteria' and the second the commercial envelope 'selection criteria'. The essential criteria required applicants to provide a number of details of the operating capacity to deliver the services being bid for. This was to be demonstrated by downloading documents, filling them out in free text and then attaching the completed documents to the tender form on the portal.
The selection criteria were completed in a different way. There were a number of rows on the application form representing specific access points from which legal services could be provided within the area of the tender. For each row there were then a number of columns to complete indicating respectively where a bid was being made, the area reference, the description of the bid, the number of new matter starts bid for respectively in immigration and asylum, and the office postcode. Thereafter there were eight numbered columns dealing with different aspects of the selection criteria. These columns were to be completed by drop down options in each box that were then entered and saved and depending on the option chosen a certain number of points were to be awarded. The instructions for completing this part of the form explained that not all the selection criteria were equally weighted and further information as to the scoring system was given in an accompanying document information for applicants (IFA) that gave a more detailed explanation as to the bidding system and what needed to be completed and why.
In substance a firm who could not comply with the requirement of the PQQ was not eligible to bid in the tender process. To have any prospect of being awarded a contract, the essential criteria needed to be submitted. Thereafter the selection criteria would only come into play if the number of bids by eligible firms exceeded the number of new matter starts on offer. Thus strictly speaking it was not necessary to have completed any of the drop-down options. It was possible that there would be no competition for the available contracts. However, once there was competition between qualified applicants the selection criteria would prove decisive in the granting of priority between them.
Mr Khashy spent some time studying the information in the IFA and related material before he completed the claimants bid. There had been some technical difficulties encountered by bidders generally with respect to different forms of word processing software or internet providers down loading documents and such like. There was a technical advice line made available by Bravo Solutions. Technical support was available to assist tenderers up until mid-day on the 28 January when the tendering closed.
Mr Khashy in his witness statement and oral evidence explained that he was only bidding for one access area in the tender process and having successfully completed the PQQ and provided all the information needed for the essential criteria, he turned his attention to the selection criteria. As he was only bidding for one access area he only completed one row of columns and for the material row he entered the number of new matter starts in Immigration and Asylum for which the firm were bidding. He then went through each of the drop down menus and selected the appropriate answer in each case. He saved the selected option and then printed out the completed bid. When he did so he noticed that on the print out each of the boxes where a drop down option had been selected was showing blank with a dash rather than the answer he had selected and saved on behalf of the firm. He went back to the screen and saw that on the screen version that the answers he had selected were still showing and therefore assumed that the print out version had been asterisked for reasons of confidentiality. He then published his bid by transmitting it through the portal and received an e mail acknowledgement that the bid had been submitted from the technical provider. He was aware that the defendant could not open the bid or begin to evaluate any of them until a month after the bid had closed. He was aware of the competition rules from the IFA.
It is common ground that the bid actually received by the defendant and subsequently evaluated by it was in the same form as the print out that Mr Khashy had retained before it was submitted, that is to say all the entries on which the claimant firm could score points were blank. During the course of Mr Widdows' evidence the bid was accessed electronically through the internet and it remains in that form today although there has been some technical modification to the appearance of the bid...
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