Azam & Co Solicitors v Legal Services Commission

A contracting authority may enforce a clearly published tender deadline against a bidder whose lateness resulted from its own lack of care. Equal treatment, transparency and proportionality do not ordinarily require the authority to accept such a late tender.

Proportionality may exceptionally require acceptance where the authority caused or contributed to the lateness, or where comparable circumstances otherwise justify different treatment. The authority must genuinely consider whether an exception is required. Giving an extension for an unexceptional, self-caused failure may unfairly advantage the late bidder and prejudice compliant bidders.

A firm of solicitors missed the deadline for tendering to provide publicly funded immigration services. The Legal Services Commission refused to accept its late tender. Briggs J dismissed the firm's claim for declaratory and mandatory relief and damages.

The firm appealed, alleging failures of equal treatment and transparency under the Public Contracts Regulations 2006, breach of a legitimate expectation of direct notification, disproportionality and failure to exercise a discretion to extend time. The central issues were whether the Commission had adequately notified the tender process and whether it lawfully refused to admit the late bid.

1. The appeal was dismissed. The letter sent to existing providers sufficiently notified them that a tender was required, identified where full information could be found and directed them to the Commission's website. A careful and diligent solicitor could not reasonably expect a further communication stating the deadline. The Commission neither caused the firm's failure nor breached any legitimate expectation.

2. The principles of equal treatment and transparency under regulation 4(3) of the Public Contracts Regulations 2006 required the Commission to avoid favouring an existing provider because of its prior relationship with the authority. The accessible tender documents stated the deadline clearly. The firm missed it because it failed to act upon the information supplied.

3. A lawful decision-making process remained necessary. Pill LJ disagreed with any suggestion in the judgment below that the lawfulness of the process was irrelevant merely because breach could be assessed objectively. On the facts, however, the Commission's detailed decision letter showed that it had considered the request, the nationwide procurement exercise and its equal-treatment obligations. It had not denied possessing power to waive the deadline.

4. Proportionality can exceptionally require a late tender to be admitted, most obviously where the contracting authority caused the lateness. Ordinarily there is no requirement to extend time where the bidder was at fault. The approach in Leadbitter and Co Ltd v Devon County Council [2009] EWHC 930 (Ch) was applied.

5. This was an unexceptional case of a bidder overlooking a deadline through its own lack of care. Extending time would have given it an advantage unavailable to bidders who complied, including those who might have improved their bids with additional time. In an oversubscribed competition, admitting another bidder could also reduce work allocated to other successful tenderers. The refusal was therefore proportionate and consistent with equal treatment and transparency.

1. Court of Appeal (Civil Division): The firm's appeal was dismissed. The Commission's notification and refusal to accept the late tender disclosed no error of law.
2. High Court, Chancery Division: Briggs J dismissed the claim on 5 May 2010, holding that the Commission had committed no breach of duty. No citation is stated in the judgment.