Dylan Conrad Kreolle Solicitors, R (On the Application Of) v Lord Chancellor

A procurement authority must apply the tender rules it has published. Where those rules require an applicant to have an office in the relevant procurement area at verification, failure to satisfy that requirement is fatal to the tender. Contractual provisions concerning outreach services do not replace a separate requirement for a permanent physical presence unless the procurement documents expressly provide otherwise. A procurement decision affecting the eligibility of a service provider does not determine whether individuals qualify for civil legal services under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Procedural complaints cannot affect the outcome where the claimant could not satisfy the substantive eligibility requirement. Judicial review proceedings challenging a procurement decision must also be brought promptly.

The claimant solicitor firm challenged the Legal Aid Agency’s withdrawal of an offer of a contract for housing, debt and welfare benefits work in the Brent procurement area. The claimant’s verified office was in Hendon, within Barnet, rather than Brent. The Agency withdrew the offer after the claimant failed to provide evidence of an office in Brent.

Permission was refused on the papers by Sir Wyn Williams. The claimant renewed its application and sought to amend its grounds, alleging statutory unlawfulness, procedural unfairness, irrationality and failures concerning the procurement documents and communications. The central issues were whether the office requirement was satisfied, whether the contractual outreach provisions altered it, whether the decision was contrary to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and whether the claim was out of time.

1. Permission refused and claim held unarguable. The Information for Applicants stated that an applicant had to evidence an office in the procurement area for which it tendered. The claimant had tendered for Brent but had an office in Barnet. That failure was independently fatal to the tender.
2. The 2018 Standard Civil Contract Specification was not incorporated into the procurement document. In any event, its permanent-presence requirement was consistent with the Information for Applicants. The outreach provisions applied only where outreach had been specifically authorised and did not replace the requirement for a physical office in the procurement area.
3. The challenge under section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was misconceived. Section 12 concerned determinations whether an individual qualified for civil legal services. The challenged decision concerned the procurement of providers and did not remove any individual’s right of access to legal services. Section 9(1) and Part 1 of Schedule 1 did not alter that conclusion.
4. The communication complaint could not affect the result. The claimant was responsible under the procurement rules for checking communications, and, even if the correspondence had been received, it could not satisfy the office requirement. The decision was also not Wednesbury unreasonable; the defendant was required by the procurement rules to withdraw the offer.
5. The reasoning in R (Public Law Project) v Lord Chancellor and the Secretary of State for Justice [2016] UKSC 39 did not assist the claimant because that case concerned restrictions on individuals’ access to legal aid, whereas this case concerned the selection of service providers.
6. The claim was brought out of time. The relevant decision was made on 26 October 2018. Even assuming the ordinary three-month judicial review period applied rather than the shorter procurement period under Regulation 92(2) of the Public Contract Regulations 2015 and CPR 54.5(6), the claim was not brought promptly. Permission was refused on that separate ground. The defendant was awarded £2,046 for the acknowledgement of service.

On 12 August 2019, Sir Wyn Williams refused permission to apply for judicial review on the papers. The claimant renewed the application before the Administrative Court and sought to amend its grounds. The renewed application and proposed amended claim were refused.