Azam & Co v Legal Services Commission

In a public procurement process, equal treatment generally requires substantially the same information and equality of opportunity for reasonably well-informed and diligent tenderers. It does not require direct notification to every potential bidder. A contracting authority may remind existing suppliers of a tender, provided the same substantive information is available to other potential suppliers.

A legitimate expectation requires a sufficiently precise assurance or a sufficiently repeated practice, objectively reasonable in the circumstances. It cannot survive an unambiguous warning that the authority expects suppliers to act without further prompting. Proportionality may justify extending a tender deadline, but the authority retains a reasonable discretion. The applicant’s care and diligence, the published no-extension rule, and the risk of unequal treatment are central considerations.

Azam & Co, an existing supplier of publicly funded immigration services, claimed relief under Regulation 47 of the Public Contracts Regulations 2006. It had missed the deadline for the 2009/10 immigration tender and alleged that the Legal Services Commission had breached duties of equal treatment, transparency, legitimate expectation, good administration and proportionality.

The firm argued that earlier dealings created an expectation of direct notification of the deadline and that refusal of a short extension was disproportionate. The central issues were whether the tender information had been communicated lawfully and whether the missed deadline should have been waived.

1. Claim dismissed. The absence of a direct communication identifying the deadline did not breach Regulation 47 or the enforceable procurement obligations.
2. The equal treatment obligation under Regulation 4(3) required equality of opportunity for reasonably well-informed and diligent tenderers. It generally required substantially the same information to be available to all, but did not require identical methods of advertisement or actual notification of every possible tenderer. The LSC’s website, Gazette advertisement and other public communications provided an adequate and equal opportunity.
3. The firm had no enforceable legitimate expectation of a further direct notification. The earlier civil tender process was not sufficiently repeated, practices concerning ordinary contract administration and criminal work could not establish the claimed expectation for the later civil tender, and the 23 December 2009 letter made clear that suppliers had to tender by the applicable deadline using the information on the website.
4. The refusal to extend the deadline was proportionate. The firm’s failure resulted from its own lack of reasonable care and diligence. Although the commercial consequences were severe and a short extension might not materially prejudice other applicants, the published no-extension term, the risk of unequal treatment, and the requirements of transparency and good administration weighed strongly against relief.
5. The objective nature of the Regulation 47 inquiry meant that it was immaterial that the LSC had stated that an extension could not be granted rather than expressly recording an exercise of discretion. The claim was dismissed in full.

First-instance claim under Regulation 47 of the Public Contracts Regulations 2006. No earlier decision is stated in the judgment.