All About Rights Law Practice, R (on the application of) v Legal Services Commission

In a public procurement exercise, a contracting authority may be required by proportionality to depart from strict tender conditions in exceptional circumstances. That principle does not ordinarily require acceptance of a material omission caused by the tenderer’s own error, particularly where the tender documents clearly require complete submission by a fixed deadline.

Clarification may resolve an ambiguity or technical defect without improving a tender. It does not extend to supplying a wholly blank mandatory form after the deadline. Equality of treatment, transparency and fairness to competing tenderers may justify strict enforcement of the tender conditions.

All About Rights Law Practice, a specialist mental health law sole practitioner, submitted an electronic tender for a publicly funded legal services contract. Although the completed documents had been prepared, a blank Tender Information Form was transmitted before the deadline. The Legal Services Commission rejected the tender because the Form was mandatory and there was no right of appeal for an incomplete tender.

The claimant sought judicial review, arguing that proportionality, good administration and equality required the Commission to identify the omission or permit the missing information to be supplied. It also challenged the Commission’s discretion and its approach to clarification cases. The central issue was whether the Commission had acted unlawfully or unfairly in applying the tender conditions strictly.

1. The claim was dismissed. The Information for Applicants repeatedly required a complete PQQ and ITT, including the mandatory Tender Information Form, to be submitted before the deadline. It placed responsibility for accurate completion and transmission on the applicant and expressly stated that the Commission was under no obligation to obtain missing information.
2. The obligations of equal treatment, transparency, proportionality and good administration applied. However, proportionality could require departure from the tender conditions only in exceptional circumstances. The error was entirely attributable to the claimant, which could have reviewed its transmitted tender before the deadline. Permitting completion of the blank Form afterwards would have conflicted with the tender rules and risked unfairness to other tenderers.
3. The clarification power in section 11.25 of the Information for Applicants did not extend to an entirely blank mandatory form. The case was materially different from Tideland Signal Limited v EC Commission, where clarification addressed an ambiguity. The claimant’s tender was incomplete, not ambiguous.
4. The authorities concerning strict tender deadlines, including J B Leadbitter & Co Ltd v Devon County Council, Azam & Co v Legal Services Commission and J R Jones Solicitors v Legal Services Commission, supported the conclusion that fairness, equal treatment and transparency required the key tender conditions to be observed.
5. The Commission had considered the claimant’s request and had not unlawfully failed to exercise, fettered or irrationally exercised any discretion. Its distinction between ambiguity or technical corruption and the failure to submit mandatory information was rational and consistent.