R Harrow Solicitors and Advocates v The Legal Services Commission
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 2011 |
| Neutral Citation | [2011] EWHC 1087 (Admin) |
| Docket Number | Case No. CO/11630/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 April 2011 |
[2011] EWHC 1087 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Waksman Qc
(Sitting as a Judge Of The High Court)
Case No. CO/11630/2010
Gerard Clarke (instructed by Harrow Solicitors and Advocates) for the Claimant
Clive Rawlings (instructed by the Legal Team, Legal Services Commission) for the Defendant
Hearing dates: 11 and 12 April 2011
Introduction:
This is a consolidated claim for judicial review of, and/or damages for breach of the Public Contract Regulations 2006 in respect of, a decision of the Legal Services Commission ("the LSC") dated 5 August 2010. By that decision, it refused the appeal by the Claimant firm of solicitors ("Harrow") against its earlier decision not to award it a contract to undertake publicly-funded immigration work.
Harrow's bid failed because it did not secure the 33 points required to gain an immigration work contract in the London area. Instead it only scored 31 points. Had it answered one question on the tender form "Yes" rather than "No" it would have scored another two points and qualified. It contends that it always intended to say "Yes" but by a demonstrably genuine error it said "No". Hence the LSC should have allowed its appeal, given it the extra 2 points and awarded it a contract. The LSC resists the claim.
The Tender Process
The LSC invited tenders from law firms in respect of publicly funded immigration work. The tender submission period ran from 30 November 2009 to noon on 28 January 2010. Successful applicants would receive a contract for three years commencing on 1 October 2010 and would be given a certain number of cases which the LSC would fund, known as Matter Starts ("Matters"). The total number of Matters available for allocation in the London area was 43,546. 218 firms bid for this work and 127 were ultimately awarded contracts. After verification and appeals the actual number of Matters allocated was 42,099.
The tender was to be completed electronically and submitted through a secure internet site. Initial eligibility was achieved by successful completion of the pre-qualification questionnaire. Thereafter, there were two key elements of the tender. The first set of questions dealt with "Essential Criteria". Failure to meet these criteria rendered the firm ineligible. If the total number of Matters sought by the eligible firms did not exceed the Matters available they would all receive the amounts asked for. But if demand exceeded supply the LSC would have recourse to the second set of questions asked in the tender and answered at the same time as the first. These dealt with "Selection Criteria". Points were awarded for particular answers. This was explained in detail in the Information for Applicants document ("IFA"). The LSC would then use the firms' respective scores to allocate the Matters available. In this case demand did exceed supply. Those firms which scored 34–38 points received their full allocation while those who scored 33 points (the vast majority of successful bidders) received a proportion.
The Selection Criteria section of the IFA gave information about the LSC's preferences and the points given for the different answers. On the topic of drop-in sessions (ie when a prospective client could attend the office for advice and assistance without a prior appointment) the IFA stated that:
"Preference will be given to Applicant[s]..that will commit to deliver at least one regular and advertised Drop-in Service Session per week available to Immigration clients from the Office.."
and the Scoring System note against that said:
"Marked out of 2.
Able to deliver at least one Drop-in Service per week from the Office..(2 points)
Unable to deliver at least one Drop-in Service per week from the Office..(0 points)"
On the electronic form itself, Criterion 5 stated the preference in the same terms as the IFA. The question then to be answered "Yes" or "No" by selecting a drop-down box was:
"5. A Regular Drop-in Session per week"
Harrow answered "No" in the following circumstances which are not challenged as matters of fact for present purposes. Mr Blades, the managing partner of the firm was out of the office in Plymouth on a case on 27 January when the form was to go in ie the day before the closing deadline. It was 80% complete and the remaining 20% was to be filled in that day. He telephoned Mr Sam Ward, the firm's secretary and IT specialist and with his assistance, Mr Ward completed the form which was quickly checked by Mr Blades, after which it was submitted. Mr Blades did not notice at the time that he had answered the question about Drop In Sessions "No". This was wrong because the firm did intend to commit to offering such work. Indeed, as Mr Blades knew, the firm had operated such a service already for a number of years. And from November 2009 it had actively advertised its drop in sessions on Tuesdays and Thursdays. The answer was a genuine error. No further checks were made of the form after it was submitted, whether before or after the deadline.
The following were material tender rules contained within the IFA:
"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.
11.6 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.
11.8 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.
11.20 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. 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.
11.23 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."
I should note here that it is common ground that "the tender process" referred to in paragraph 11.8 includes any appeal so that the power under 11.8 could be exercised within that process.
Harrow, along with the other bidding firms, was notified of the tender results by a letter dated 28 June 20One reason why this came some 5 months after the bidding closed was because the LSC first needed to see by reference to the number of Matters being sought whether it had to have recourse to the Selection Criteria at all. Once it did, it then needed to score all the bids and decide how to allocate. The letter to Harrow stated that it had failed to meet the minimum number of points because it only scored 31 and not 33. Its score was set out from which it could be seen that it scored 0 points in respect of Regular Drop In Sessions.
The Appeal
As a result Harrow appealed. The material appeal provisions state as follows:
"10.19 There will be a right of appeal against a decision by us not to award a 2010 Standard Civil Contract or to reject your application if it is incomplete.
10.20 The right of appeal applies in the following circumstances:…
(c) Where the Applicant Organisation's Individual Bid ranks lower than those of other Applicant Organisations on the Selection Criteria and is subsequently not awarded a contract."
The scope of the appeal process is not expressed to be limited in any way.
On 6 July 2010 Harrow wrote in support of its appeal stating that it had in fact been offering immigration drop-in sessions and that between October 2009 and July 2010 it held 71 such sessions each lasting about 8 hours over which periods it saw about 115 clients whose details it had retained. The sessions had been positively advertised over this period. Therefore Harrow had been committed to providing at least one drop-in session per week and would continue to be so committed.
By a letter dated 5 August 2010 the LSC rejected the appeal. It cited various provisions of the IFA and then the facts relevant to the appeal. In the Decision section the letter stated that the original score of 31 was correct, based on the submitted tender and that the IFA comprehensively set out what was required for a tender response and the responsibility to ensure that it was accurate. It also referred to the purpose of treating all applicants fairly and the LSC's duty under the Regulations to treat them fairly and consistently. As for...
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