All About Rights Law Practice, R (on the application of) v The Lord Chancellor

In a public procurement exercise, rejection of a tender containing a blank mandatory form is not disproportionate where the form constitutes the substantive bid and completing it after the deadline would amount to a new or improved tender. Clarification is permissible only for an obvious ambiguity or material error that can be corrected without changing the bid or disadvantaging other tenderers. The contracting authority’s judgment attracts an appropriate margin of appreciation, subject to intervention for manifest error or unjustifiable conduct. Equal treatment requires identification of genuinely comparable tenderers. Different treatment is lawful where the situations differ materially or there are objective grounds for the distinction.

A niche solicitors’ practice challenged the rejection of its bid in a Legal Services Commission tender for publicly funded mental health services. The bid contained a blank Tender Information Form, although the claimant had submitted the other required material and would otherwise have qualified for a contract. The claim was initially dismissed by Davis J, whose order was later set aside by consent after materially inaccurate evidence about clarification practices came to light. The remaining issues were whether rejection was disproportionate and whether the claimant had been treated unequally contrary to regulation 4(3) of the Public Contract Regulations 2006.

1. Claim dismissed. The rejection of the tender was neither disproportionate nor contrary to the equal-treatment obligation.
2. The court should allow the contracting authority an appropriate margin of appreciation on matters involving judgment or assessment. Intervention is justified only for manifest error or unjustifiable conduct. Proportionality requires measures to be appropriate and necessary to achieve the procurement objective, with the least onerous suitable measure being selected.
3. Clarification or correction after the deadline is permissible only in exceptional circumstances, such as an obvious slip, ambiguity or material error that can be readily corrected without submitting a new tender, improving the bid or disadvantaging other tenderers. The authority must comply strictly with the published tender criteria.
4. The Tender Information Form was expressly identified as the only mandatory form. It was central to the bid because it specified the number and location of Matter Starts and the staffing arrangements. A blank form did not present an ambiguity or an obvious error. Completing it after the deadline would have supplied the substance of the bid, potentially increased the claimant’s allocation and reduced the work available to others.
5. The fact that successful mental-health tenderers were guaranteed a contract did not remove competition, because the available work remained limited. The LSC was entitled to distinguish the Tender Information Form from the Pre-Qualification Questionnaire. The latter was a gateway to participation, whereas the former was the substantive bid. Greater flexibility for PQQ errors therefore had an objectively justifiable basis.
6. For equal treatment, the proper comparator was a tenderer in the same or materially the same position. The only true comparators identified were the two other mental-health firms that had also submitted blank Tender Information Forms. They were treated identically. Other examples involved completed forms, information already held by the LSC, reduced bids, or a different stage or type of tender, and did not establish unequal treatment.

1. High Court (Administrative Court): Davis J dismissed the claim on 14 April 2011 in [2011] EWHC 964 (Admin). The order was later set aside by consent and the matter remitted for reconsideration of the remaining proportionality and equality grounds.
2. High Court (Administrative Court): Carr J dismissed the remaining claim, holding that the rejection was proportionate and that there had been no unequal treatment.