Allan Rutherford LLP Solicitors v The Legal Services Commission

A public procurement criterion is not irrational merely because it favours organisations with particular experience, including experience acquired through written representations before tribunals. A tender criterion introduced after consultation may be lawful where the consultation did not promise that the criteria were fixed and bidders had a fair opportunity to respond. A scheme allocating all available work to the highest-scoring bidder is not unlawful merely because it may create a local monopoly, provided statutory access duties remain capable of fulfilment. Judicial review challenges to procurement criteria ordinarily accrue when the tender documents are published. A disappointed bidder cannot generally wait to see whether it succeeds before challenging an apparent defect.

The claimant solicitors failed to obtain a Legal Services Commission contract for publicly funded social welfare law services in Norwich. The contract covered debt, housing and welfare benefits. A consortium comprising Norwich Citizens Advice Bureau and Shelter obtained all available new matter starts.

The claimant challenged the tender process on grounds including irrationality, unfair timing of a tribunal-experience criterion, legitimate expectation, unlawful creation of a local monopoly, and unlawfully restricted appeal arrangements. The Legal Services Commission also relied on delay and the availability of a remedy under the Public Contracts Regulations 2006. The central issues were whether the grounds were arguable and whether the claim had been brought promptly.

1. Permission refused. The claimant had no arguable case on the merits and had also delayed unreasonably.
2. The tribunal-experience criterion was rationally connected with assessing the depth and breadth of welfare benefits expertise. It was relevant even though tribunal advocacy was available only exceptionally under legal aid, because the criterion also covered written representations and work taking cases through the tribunal system. The criterion was not rendered unlawful by its absence from the earlier consultation materials. The consultation process did not promise that the final criteria were fixed, and bidders had a fair opportunity to improve their position by identifying suitable personnel or forming a consortium.
3. The criterion did not materially affect the result. Even if it were removed, the successful consortium would still have outscored the claimant. The timing and fairness reasoning in The Law Society v The Legal Services Commission [2010] EWHC 2550 (Admin) concerned materially different circumstances and did not assist the claimant.
4. The scheme was not arguably irrational merely because it allowed the highest-scoring bidder to receive all new matter starts and thereby become the sole provider at an access point. Section 4 of the Access to Justice Act 1999 did not require multiple providers in every locality. Conflicts of interest could be managed by referral to other providers, including providers outside the immediate area.
5. The appeal process permitted re-evaluation of the submitted bid against the published criteria, but did not confer a general discretion to allow a bidder to amend its tender or receive work outside the competition. Equal treatment required the Legal Services Commission to apply the same criteria to all bidders.
6. Time began to run when the tender documents were published. Under CPR 54.5 and section 31(6) of the Senior Courts Act 1981, there was no good reason to extend time. The claimant had chosen to wait and see whether it would succeed, and a fresh competition would prejudice the successful bidder and damage good administration. Jobsin Co UK Plc v Department of Health [2001] EWCA Civ 1241 was applied. The possible alternative remedy under the Public Contracts Regulations 2006 was noted but did not require determination.

First-instance application for permission to apply for judicial review. No appeal history is stated in the judgment.