JR Jones v Legal Services Commission
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Purle |
| Judgment Date | 16 December 2010 |
| Neutral Citation | [2010] EWHC 3671 (Ch) |
| Court | Chancery Division |
| Date | 16 December 2010 |
| Docket Number | Case No: 0BM30589 and 0BM305559 |
[2010] EWHC 3671 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Priory Courts, 33 Bull Street,
Birmingham, B4 6DS,
His Honour Judge Purle Qc
Sitting as a High Court Judge
Case No: 0BM30589 and 0BM305559
MR ALEX DURANCE (instructed by Mohammad Shabir, JR Jones Solicitors) for the Applicants
MS FIONA SCOLDING (instructed by Malcolm Bryant, solicitor for the LSC) for the Respondents
APPROVED JUDGMENT
(TELEPHONE HEARING)
His Honour Judge Purle Qc:
This is an application by the applicant solicitors claiming in the first instance a declaration to the effect that their failure to obtain an immigration contract following a tendering process for the carrying out of publicly funded work was unlawful.
A breach by the respondents, the Legal Services Commission ("LSC"), of regulation 47 of the Public Contracts Regulations 2006 ("the 2006 Regulations") is alleged. Paragraph 47(1) provides:
"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."
It is further provided in subparagraph (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."
As proceedings under the Regulations raise competition issues, they are ordinarily assigned to the Chancery Division.
Regulation 4(3) provides:
"(3) 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."
Essentially the facts of this case are that a tendering process for immigration and asylum work was instituted towards the end of 2009 with a deadline for submitting tenders of 12.00 noon on 28 th January 2010. It was stipulated that tenders submitted after the deadline would not be considered.
There was a full Information for Applicants Pack ("IFA") which explained the process in detail. The exercise was a national one but broken up into geographical regions, and within each geographical region there were access points. The relevant access point so far as the current applicants are concerned, was South Staffordshire, Sandwell and Birmingham, which I shall call "the Birmingham access point" for short.
The IFA explained that the tendering process would be by an e-tendering system. There was a requirement for completion of a pre-qualification questionnaire (or "PQQ" for short) and an invitation to tender (or "ITT" for short). No issue arises in this case as to the PQQ. The purpose of the PQQ was to enable the Legal Services Commission to assess whether an applicant met the minimum standards, which the present applicants clearly did. The purpose of the ITT was for the applicants to demonstrate various attributes upon which they would be scored and which would form the basis of the competition. As things turned out, the competition was massively over-subscribed, both nationally and locally. This was particularly so at the Birmingham access point.
It was also explained in the IFA that for the Birmingham access point a finite defined number of asylum matter starts and immigration, non-asylum, matter starts would be offered. The process was important not just for the matter starts in question but because the obtaining of an immigration or asylum contract for advisory work is a pre-condition of obtaining licensed work which would enable the applicants, with the benefit of public funding, to bring substantive judicial review proceedings for its clients.
There was set out in the IFA in Annexe B a detailed explanation of the selection criteria and the scoring that was to be attributed to various aspects of that. I need only highlight one aspect of it: that preference, it was said, would be given to those individual bids that could provide the LSC with a higher level of confidence of delivery through experience of delivering legal services.
Under the e-tendering process there were four optional answers to one of the questions. Option 1 was the answer relevant to an applicant organisation which had delivered immigration services and advised clients in at least 35 cases in the immigration category of law since December 2008, including representing at least one client before the AIT. Annexe B indicated that if that answer could be given, then eight points would be awarded.
The second option was this: "The applicant organisation has delivered immigration services and advised clients in at least 35 cases in the immigration category of law since December 2008." That carried five points. It will immediately be seen that the difference between the first and second options was that, although they both related to advising in at least 35 cases in the immigration category, an extra three points would be obtained by anyone who had represented at least one client before the AIT in the relevant period. I need not consider the other two options.
What happened in this case was that the applicants, when they came to tick or check the drop-down box on the computer screen when submitting the tender, checked the second option, when in fact they should have checked the first option. It is not difficult to see how that mistake could be made because each of those categories related to advising in at least 35 cases. The significance of the first option was that if, in addition, the applicants had represented at least one client before the AIT since December 2008 (which they had) they got an extra three points.
I should also mention that within the series of questions, the applicants were able to select an exceptional circumstances option for use where they considered that none of the other options provided applied to their individual bids. Those exceptional circumstances could then be evaluated and might get them a score of up to eight points. There are other parts of the form which also incorporated exceptional circumstances; so that, whereas the simple fact of whether one had or had not advised in the relevant number of cases including at least one client before the AIT was objectively verifiable involving a simple question of fact, the exceptional circumstances which other applicants might rely upon involved matters of judgment.
The conditions of the tender process were set out in section 11. That reinforced in 11.2 that tenders must be submitted by 12.00 noon on 28 th January 2010 and provided that tenders would not be accepted if they were submitted after that time; nor would the LSC consider requests for an extension of the time or date for the submission of tenders.
Subsection 11.6 provided:
"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."
It is evident there from the use of the word "may", that there was no inevitability about incomplete tenders not being considered. That was a matter in respect of which there was a retained discretion on the part of the LSC, just as there was in the analogous situation in Lion Apparel Systems Ltd v. Firebuy Ltd, a decision of Morgan J, reported at [2007] EWHC 2179 (Ch). In that case a discretion relating to undisclosed matters falsifying other information was considered. Morgan J ruled that as the matter was one for the discretion of the procuring authority, the court cannot intervene unless the exercise of discretion by that authority was manifestly wrong.
Going back to the conditions in this case, condition 11.8 provided:
"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."
Mr Durance for the applicant in this case has placed considerable reliance on conditions 11.6 and 11.8 in the circumstances which I shall come to relate.
In condition 11.20 it was, amongst other things, provided as follows:
"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" (which was, as I have said, 28 th January 2010 at 12.00 noon). "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."
Condition 11.22 then provided:
"The right of appeal for unsuccessful applicants is limited to that set out in paragraphs 10.19 to 10.24 above"
I shall return to the right of appeal later.
Condition 11.23 provided as follows:
"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."
There is thus potential tension...
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