Hossack, R (on the application of) v Legal Services Commission

A contracting authority may clarify a tender only within the limits imposed by equal treatment, non-discrimination and transparency. It cannot waive an essential criterion stated in the procurement documents as mandatory and assessed on a pass/fail basis. A bidder’s inability to satisfy an area-presence requirement therefore justifies rejection, even if other defects might be clarifiable. Where a tender challenge is otherwise arguable, a statutory remedy under the Public Contracts Regulations 2006 will not necessarily be an adequate alternative to judicial review. Material uncertainty about whether the statutory court can set aside the decision, or may award only damages, can justify permission for judicial review. Permission may be confined to the specific arguable tender.

The Legal Services Commission invited tenders for publicly funded social welfare legal services in 125 procurement areas. Mrs Hossack submitted a tender for each area, but the forms referred to Wiltshire and stated that the relevant staff and office arrangements existed in each area. The LSC rejected all tenders except Wiltshire. Mrs Hossack sought judicial review.

Mitting J refused permission, holding that the challenge to the scheme was too late and that an application under Part 9 of the Public Contracts Regulations 2006 provided an alternative remedy for the Northamptonshire tender. On appeal, the central issues were whether the LSC could clarify or waive the tender defects and whether the statutory remedy was adequate.

1. The appeal was allowed only to the extent that permission to apply for judicial review was granted in relation to the rejection of the Northamptonshire tender. The Court of Appeal exercised its power under CPR 52.15(3), rather than granting permission to appeal. The substantive claim was to proceed in the Administrative Court under CPR 52.15(4).
2. A challenge to the procurement scheme itself could not be advanced in these proceedings. Delay was sufficient to defeat that challenge. Alleged unmet demand after the original tendering process did not make the decision to reject Mrs Hossack’s tenders unlawful. The arguments under the Access to Justice Act 1999, section 4(4), and the Disability Discrimination Act 1995, section 49A(1), were likewise criticisms of the scheme or of a further tendering exercise and were not properly before the court.
3. Regulation 4(3) of the Public Contracts Regulations 2006 required equal treatment, non-discrimination and transparency. Those obligations constrained any power to clarify, correct or complete tender documents. The requirement for at least a part-time presence in the procurement area was an essential criterion, assessed on a pass/fail basis. The exceptional-circumstances procedure applicable to specified pre-qualification questions did not extend to that criterion. Waiving it would have been unlawful. The rejection of the tenders for areas other than Northamptonshire was therefore inevitable.
4. Northamptonshire was different because Mrs Hossack satisfied the presence requirement there. Although the tender contained substantial defects, it was arguable that the LSC could assess it on the basis of the stated part-time presence. The claim had a sufficient public law character and was just arguable, although Mrs Hossack faced an uphill struggle.
5. The statutory remedy was not an appropriate alternative remedy in the circumstances. It was uncertain whether the contract was one that had not yet been entered into for the purposes of regulation 47I, whether the court could set aside the rejection decision, and whether Mrs Hossack might be confined to damages. It was also unclear whether the court could order reconsideration. That uncertainty justified permission for judicial review.

1. Court of Appeal (Civil Division): granted permission to apply for judicial review concerning the Northamptonshire tender under CPR 52.15(3), and directed that the substantive claim proceed in the Administrative Court under CPR 52.15(4).
2. High Court, Administrative Court: Mitting J refused permission to apply for judicial review, relying in relation to Northamptonshire on the availability of an alternative remedy under the Public Contracts Regulations 2006: [2011] EWHC 698 (Admin).