Mind the gaps

United Kingdom

Where a tenderer mistakenly submitted a blank mandatory form to the Legal Services Commission, the Legal Services Commission did not act disproportionately or treat the tenderer unequally when it rejected its tender.

The recent decision in R (on the application of All About Rights Law Practice) v The Lord Chancellor (as successor to the Legal Services Commission) [2013] EWHC 3461 related to an application for judicial review of the Legal Services Commission’s (“LSC”) rejection of a bid by All About Rights Law Practice (“AAR”) in the 2010 tender for the provision of legal aid services in respect of mental health work. Due to the smaller number of solicitors specialising in mental health, there was a relatively low level of competition for legal aid funding in the area. It was therefore only necessary for tenderers to pass the Pre-Qualification Questionnaire and essential criteria (in relation to which tenderers had to complete a Tender Information Form (“TIF”)) in order for bids to be successful. AAR inadvertently submitted a blank TIF and its bid was therefore rejected by the LSC.

Permission to apply for judicial review of the LSC’s decision was granted on 21 October 2010. AAR challenged the LSC’s decision on three grounds:

  1. There was an obligation on the LSC to draw to the attention of AAR the omissions in its tender.
  2. The LSC failed to exercise its discretion or unlawfully exercised its discretion.
  3. There was irrationality or inequality in the way in which the LSC dealt with incomplete tenders.

In rejecting AAR’s first application for judicial review, Davis J relied on the LSC’s evidence - that it had never sought clarification from tenderers where they submitted blank responses - in order to reach a conclusion that there had been no inequality of treatment. Following the hearing, however, it became apparent that the LSC had sought clarification from tenderers in several instances in the past where blank responses were submitted. On the basis of this new evidence, AAR lodged a notice of appeal and the LSC accepted that the matter should be reheard. By the time of the second hearing of the application, only two issues remained in dispute:

  1. Whether the LSC’s decision to reject AAR’s tender was proportionate.
  2. Whether there was inequality of treatment between AAR and other tenderers.

In dismissing the application, the Court held that the LSC’s decision to reject AAR’s bid was not disproportionate. Amongst the reasons given was that the Information for Applicants provided by the LSC to tenderers made it clear that tenderers could not amend or alter any part of the bid after the closing deadline. Further, this was not a situation of clarification of ambiguity (as the TIF had been submitted completely blank) and to allow submission of a later completed TIF would have effectively meant allowing the submission of a new bid after the deadline for submission.

The Court also held, in rejecting AAR’s submission that it had been treated unequally, that each tender process was separate and distinct and it was not possible to make direct comparisons between the LSC’s conduct in different tenders. There was no inequality of treatment in the circumstances as those firms who made the same mistake as AAR in relation to the same tender were treated in exactly the same way.

This case highlights that contracting authorities are entitled to take a firm line when accepting tenders and are not obliged to exercise their discretion even when it may be apparent that mistakes have been made on submission of a bid. All bidders are therefore advised to take care to submit complete and fully responsive bids and to double-check what has been uploaded to online portals.