Hoole & Co (a firm), R (on the application of) v Legal Services Commision

In a competitive public tender, a general duty of fairness is subject to the overriding requirement that all tenderers receive equal treatment. Where an applicant has failed, without fault by the contracting authority, to provide information required for competitive scoring, fairness does not ordinarily require the authority to investigate other material, invite amendment, or complete the tender after the closing date.

A power to seek clarification arises where the tender is genuinely ambiguous and the ambiguity can readily and fairly be resolved. An incomplete tender is not necessarily ambiguous. Any clarification process must not give one tenderer an opportunity to improve its competitive position.

The claimant, a firm providing immigration and asylum legal services, sought judicial review of the Legal Services Commission’s rejection of its tender for new matter starts in Bristol. The tender was submitted electronically under the Public Contracts Regulations 2006 and the general principles of European public law.

The claimant contended that its selected scoring options had been lost by a software failure, or that the tendering system had misled it. It also alleged that the Commission should have sought clarification or used information held elsewhere, and that it had treated other tenderers more favourably. The central issues were whether the Commission owed such duties and whether its treatment of the claimant was inconsistent with transparency and equal treatment.

1. Claim dismissed. The evidence established that there had been no system error and that the information required for scoring had not been submitted. The electronic receipt confirmed transmission of the bid, not the contents transmitted.
2. A clarification power must be exercised where a tender is genuinely ambiguous, and the ambiguity is practically capable of simple resolution in circumstances requiring clarification. The claimant’s tender was incomplete, not ambiguous. Information elsewhere in the tender did not supply all the distinct information required by the selection criteria. Tideland Signal Ltd v Commission of the European Communities [2002] ECR II-3781 therefore did not assist the claimant.
3. In a competitive tender, any general public law duty to allow correction of an obvious error is severely circumscribed by the duty to apply the competition rules consistently and equally. Allowing the claimant to complete or improve its bid after the closing date would have been unfair to rival tenderers. The approach was consistent with Leadbitter v Devon County Council [2009] EWHC 930 (Ch), approved in Azam v Legal Services Commission [2010] EWCA Civ 1194.
4. JR Jones v Legal Services Commission [2010] EWHC 3671 (Ch) did not establish a general duty to clarify missing information. Its relevant comments concerned evidence about the exercise of the clarification power and were cautious about the circumstances in which that power could lawfully be used.
5. The alleged comparisons with other tenderers did not involve like cases. Different competitions and assistance concerning eligibility under the pre-qualification questionnaire did not establish unlawful unequal treatment in the competitive scoring process.
6. Although claims under the Public Contracts Regulations 2006 should ordinarily be brought in the Chancery Division, the court granted permission for judicial review because of the overlap between the public law and regulatory issues. The application was nevertheless dismissed.