R Tice Madox Solicitors v Legal Aid Agency

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THE DEPUTY JUDGE:

This is an application for judicial review of the defendant's decision of 21 February 2022 notifying the claimant of its failed bid in relation to procuring the provision of criminal legal aid services from October 2022.

The Legal Aid Defendant is the administrative arm of the Ministry of Justice. This application concerns the claimant's tender submission which could not proceed because the tender contained a blank document.

Mr Maduforo, who represented the claimant, made concise and powerful submissions. He argued that the fault for the blank document lay with the Legal Aid Defendant and that the tender application should be allowed to proceed.

For the purpose of this application I have considered the statements of facts and issues, the defendant's summary grounds and skeleton arguments from both sides. The oral applications lasted three and a half hours, and I heard detailed oral submissions and have been taken through a number of authorities by Sarah Hannaford QC. The fact that I do not expressly deal with each of these submissions should not be understood as meaning that I have not considered all the submissions made by both parties, both orally and in writing.

It is convenient to consider the application in terms of the way the defendant outlined its submissions. They involve, effectively, four issues:

(i) The claim was out of time.

(ii) There was an adequate alternative remedy.

(iii) None of the grounds advanced were arguable; and

(iv) The claimant was not entitled to the interim relief sought.

The Legal Background.

The information for applications arose because of the light touch regime the defendant chose to use, which finds its root in Regulations 74 to 77 of the Public Procurement Regulations. That is accepted by the claimant.

The application of the Public Procurement Regulations means, so the defendant submits, that claims under the Regulations are private law claims, and that the time limit is 30 days, whether under CPR 54.5(6) or Regulation 92.

The Background.

The tender exercise which the defendants ask tenderers to complete requires them to download the duty information form from the e-Tendering system, and to enable macros to complete that form. The macros' purpose was to enable tenderers to join a scheme for which it was eligible by virtue of the postcode or Borough. Those who could not enable macros could request non-macros through an e-Tendering system by 22 November 2021.

The Legal Aid Agency followed the procedure contained in the Information For Applications (“IFA”). The defendant's summary grounds and oral submissions made detailed references to the IFA to explain the context relevant to this procurement challenge. Section 1.4 of the IFA required all tenders to be complete, and emphasised that late applications would not be considered in any circumstances; it was the tenderer's own responsibility to correctly complete and fully and properly represent its bid. Section 2.1 required the tenderer to identify the office it was tendering for. Section 3.10 required, for the Duty Solicitors Scheme, the identification of a post code. Section 4.10 said that the tenderer or applicant must check to see that he successfully completed the application. Section 4.11 said that bids were sealed so the defendant could not access information prior to the deadline for submitting tenders. It could not confirm receipt. Miss Hannaford emphasised that this approach was designed to give effect to the obligations of equality to treatment, and transparency under the Procurement Regulations.

Section 5.1 permitted applications in respect of the criminal investigations and criminal procedures via the duty solicitors' scheme in London Boroughs, and also allowed for criminal investigations and criminal proceedings which were exclusively on client work. Section 5.19 imposed the obligation to submit a Duty Information Form (“DIF”). Section 5.20 obliged the tenderer to follow the procedures of section 5.22, which was linked to the post code. Section 5.25 required an applicant using the DIFs to enable macros. Section 5.26 stated that older versions of Microsoft Excel may not enable macros to use the DIFs. Section 5.27 indicated that if a tenderer or applicant could not access macros they could request a non-macro version of the DIF. Section 5.28 said the DIF must contain details of the office in respect of which the tender was applying. Section 5.30 said that the DIFs could not be completed outside the e-Tendering system. It was not possible for e-Tendering to prevent an incorrect or incomplete submission from being submitted. Section 5.31 said that it was the applicant's sole responsibility for ensuring that the relevant DIF was fully and accurately completed. 5.32 indicated, and the defendants emphasise, that if it was the DIF was not properly completed, the tenderer would not be eligible to join the scheme.

Section 10.1 stated that the procurement process was governed by the IFA and was a complete statement of the rules of the procurement process. Section 10.5 indicates that the tender must be completed by the deadline, that the defendant could not consider, amend or substitute tenders after the deadline, or an application for an extension. It required the applicant to accept all responsibility for ensuring that all parts of the tender were submitted. Section 10.8 stated that the applicant must submit a complete tender prior to the deadlines. It must upload all the relevant information, and, if not, there was no right of appeal. Section 10.10 stated that the applicant must ensure that its tender was fully and accurately completed. Section 10.25 said that Defendant, at its sole discretion, could seek to clarify or verify the tender, but would not do so if that afforded the opportunity to improve its tender which would constitute a new tender. Section 10.38 conferred the sole right of appeal, which was limited to an SQ which was not relevant here. Section 10.39 confirmed there was no other right of appeal in respect of mistakes, inaccuracies and errors in tenders. Those were the requirements specified by the IFA.

The chronology of relevant events is as follows. On 19 October the procurement opened and closed on 30 November 2021. On 9 November 2021 the claimant indicated it was having difficulties accessing the DIF and asked for the file to be corrected. The following day, 10 November, the defendant offered a non-macro version of the form. The email request for a non-macro form was at 12.46. At 13.47 the claimant, again, emailed saying that the non-macro was no longer required because it was possible to use a macro-enabled DIF on another computer. At 15.47 the defendant replied by email treating the claimant's last email as no longer requiring a non-macro form but stating that, if that was not correct, the claimant should contact the Defendant. There was no response from the claimant, and that same day the tender was submitted by the claimant.

On 30 November 2021, the procurement came to an end, and as I have already indicated it was not open to the defendant, in line with section 4.11 of the IFA form to look at the tenders between 19 October and 30 November when the procurement exercise was taking place. When the tenders were opened, it emerged that the claimant had submitted a blank form and, indeed, five other tenderers had also submitted blank forms. So the defendant was not in a position to determine what office the applicant wanted to operate from and what duty scheme in London it should be considered for. The DIF, which was blank, was the document which had to convey that relevant information. On that basis, the defendant decided to exclude the claimant from the duty scheme.

On 21 February 2022, the claimant was informed of the result of their bid in a standard form letter. The award summarised its conclusion in Annex A and indicated that there were unsuccessful criminal investigations via the Duty Solicitor Scheme in London Boroughs, but there was a successful application for exclusively own client work. The explanation that was given was that submitting the blank DIF meant there were no details of the office or duty scheme intended to be bid for which, of course, for the reasons I have already indicated was fundamental to the tender application. On 22 February, the claimant attempted to send a completed macro-enabled form whilst requesting a non-macro form. On 25...