JR Jones Solicitors v Legal Services Commission

In a competitive public procurement exercise, a tenderer is generally bound by the published criteria and deadline. A later request to correct an answer which was unambiguous on the face of the tender is an amendment, not a clarification. The contracting authority may retain an exceptional discretion to waive the rule, particularly where its own fault contributed to the error, but proportionality does not ordinarily require that discretion to be exercised. Equal treatment, transparency and the need to preserve a level playing field justify applying the tender conditions consistently, even where the result is harsh. The court’s review is limited and intervention requires a manifest error or equivalent unlawfulness. An economic operator with an adequate remedy under the procurement regulations should ordinarily proceed under those regulations rather than by judicial review.

The applicants, solicitors seeking publicly funded immigration work, submitted a tender to the Legal Services Commission. They selected an answer worth five points instead of an answer worth eight points, although the underlying facts entitled them to the higher score. The error was discovered only after the tender had been evaluated and the applicants had appealed against the refusal to award a contract.

The applicants argued that the appeal process permitted the LSC to verify the objectively ascertainable facts and that refusing to correct the error was disproportionate and irrational. They also pursued associated judicial review proceedings. The central issues were whether correction would be a clarification or an impermissible amendment, whether the LSC had unlawfully failed to exercise its discretion, and whether judicial review was available where the Public Contracts Regulations 2006 supplied an alternative remedy.

1. The application under the regulations was dismissed. The applicants had submitted an unambiguous tender containing the wrong answer. Correcting it after the closing date would have amended the tender rather than clarified an ambiguity apparent on its face.
2. The tender conditions required applicants to complete their tenders accurately and prohibited amendments after the deadline. Conditions allowing clarification did not override that prohibition. The LSC was entitled to reconcile the provisions by reserving clarification for tenders that were incomplete or internally inconsistent, while preventing substantive changes.
3. The principles of equal treatment, non-discrimination, transparency and preservation of a level playing field supported strict application of the published criteria. Allowing the applicants to improve their bid after the results had been announced could disadvantage other tenderers, including those who had complied with the deadline or refrained from pursuing an appeal on the natural understanding that amendments were prohibited.
4. The LSC had a broad discretion in conducting the procurement exercise. The court’s review was limited to errors such as manifestly wrong assessment, manifest error, misuse of power or equivalent unlawfulness. Proportionality required intervention only in exceptional circumstances. Such circumstances might arise where the contracting authority itself was at fault, but none existed here.
5. The reasoning in Azam & Co. v Legal Services Commission applied with appropriate modifications. The applicants had an equal opportunity to make their case and had failed to take full advantage of it through their own error. The LSC was not manifestly wrong in applying the tender conditions.
6. Judicial review was inappropriate for an economic operator where proceedings under the regulations provided an adequate alternative remedy. The court therefore refused permission for judicial review. The Chancery proceedings and the judicial review proceedings were dismissed or refused accordingly.

Not an appeal. The judgment records that related judicial review proceedings had originally been commenced in the Queen’s Bench Division and transferred to the Chancery Division on costs. The court refused permission for those proceedings and dismissed the claim under the regulations.