Parker Rhodes Hickmotts Solicitors v The Legal Services Commission

In a competitive tender, a procuring authority may award additional credit for higher professional qualifications, even where some bidders cannot obtain them during the tender period. A modest score for submitting an accreditation application is not irrational merely because the application alone gives limited evidence of service quality.

A bidder aware of a potential defect in tender criteria must challenge it promptly and cannot wait to see whether its bid succeeds. Where tender documents leave the verification procedure undefined, the authority may choose an appropriate method, including self-verification, provided the process is applied equally and completed before contracts are entered.

The claimant solicitor firm sought judicial review of the Legal Services Commission’s allocation of publicly funded immigration and asylum work for the period 2010 to 2013. It challenged the use of an IAAS Level 3 accreditation criterion, the treatment of that criterion at organisation level rather than individual-office level, and the adequacy of the Commission’s verification of successful bidders’ staffing capacity.

The claim was brought after the allocation decision and after the Commission confirmed that it would proceed with the contracts. Permission was granted on a rolled-up basis on the surviving grounds. The central issues were whether the tender criteria were unlawful or contrary to the Commission’s policy, whether the challenges were sufficiently prompt, and whether the verification exercise complied with the tender documents.

1. Ground 1 dismissed. It was lawful for the Commission to give credit for IAAS Level 3 accreditation. Competitive tendering necessarily permits differences in qualification and scoring; the absence of a level playing field did not make the criterion unfair or arbitrary. It was also not irrational to award one point for an application for accreditation, since this could indicate organisational commitment to improving standards, even though it was only limited evidence of quality.
2. The fact that the single point had a significant effect on the South Yorkshire allocation did not make the criterion irrational. The Commission was not required to predict the closeness of each local competition or the eventual impact of each criterion. The claimant could have taken the straightforward step of applying for accreditation.
3. The challenges to the criterion were substantially out of time under CPR Part 54.5. A bidder aware of a potential defect cannot wait to see whether it succeeds before bringing proceedings. The reasoning in Allen Rutherford LLP Solicitors v The Legal Services Commission [2010] EWHC 3068 (Admin) and Hereward & Foster LLP v The Legal Services Commission [2010] EWHC 3370 (Admin) applied. The later knowledge of the criterion’s practical effect did not create a separate ground.
4. Ground 2 dismissed. The requirement that bids be made for individual offices did not mean that every selection criterion had to be assessed solely by reference to the individual office. Other criteria expressly concerned the organisation as a whole. No breach of the Commission’s policy was established.
5. Ground 3 dismissed. The tender documents did not prescribe the form or rigour of verification. The Commission was entitled to use self-verification to assure itself that successful bidders could meet their allocations. The process was completed before contracts were entered and applied equally. Public Interest Lawyers v Legal Services Commission [2010] EWHC 3277 (Admin) did not require a different result.
6. The judicial review application was refused. Illegality had not been established.

Permission was initially refused on several grounds. Permission was later granted on the surviving grounds, with a rolled-up permission and substantive hearing ordered. The application was refused by the High Court (Administrative Court).