Legal Aid Procurement – A New World Record For Supplier Challenges!

The Legal Aid Agency (LAA) is facing one of the most extensive challenges to a procurement process that we’ve ever seen. The contracting process for Legal Aid services in England and Wales has led to around 115 legal challenges across 69 of the 85 procurement areas – the Guinness Book of Records are investigating, but that looks like the most challenges to a single procurement process in the history of the world. Well done, LAA! There is going to be a judicial review of the process, and it looks like somehow the complaints will be looked at in total rather than individually, which is some relief for everyone involved.

Joking aside, I was a Commissioner – effectively a non-executive director – for the Legal Services Commission (the LAA’s predecessor organisation) from 2006-2010. I resigned partly because of the toxic relationship between LSC and the Ministry of Justice, partly because of some stupid comments Jack Straw, the Minister, made about us as Commissioners, and partly because to be honest, I wasn’t sure I was adding much value as the supposed Commissioner who was a “procurement expert”.

The procurement task seemed very close to impossible. Certainly, I have never seen such a complex and apparently intractable procurement challenge as letting contracts for legal aid services across the country. That was made worse by the fact that the suppliers are all law firms who are probably a bit keener on challenging the outcomes than your average facilities management or consulting services supplier!

So I have much sympathy with LAA. However, it has to be said that some of the stories around this exercise don’t sound good for the Agency. A whistleblower who was engaged to work on the tender evaluation process complained about a range of issues. The evaluators were hired as agency staff on £9.30 an hour, which does not fill one with confidence – I don’t think I have ever worked on a public sector tender evaluation that wasn’t carried out by staff, with perhaps some consulting or interim support but even then they would be people who were involved with the project, not pulled in off the street by an agency.

There were also questions about the moderation process, and apparently the same answer being marked differently across different areas – or bidders marked down for giving the same answer for different areas (which if it is the same question they are replying to seems like a reasonable approach from the bidders). The training given to the markers will be another issue for the courts to consider, as will the “time and motion” approach apparently taken to the evaluator’s working efficiency.

We won’t pre-judge things and prejudice the review (I’m available at very reasonable rates to be an expert witness, for either side ...) but we will watch the outcome with interest. Whilst I do wish the people I still know in LAA good luck with this, it may just demonstrate that a more radical solution might have to be adopted eventually here (and I’m not sure what that might be). But perhaps “conventional” procurement just will not work in this case?

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First Voice

  1. Paul Howard:

    Perhaps with a bit more careful thought about the structure of the questions in the evaluation, this was a perfect job for an eSourcing evaluation software package e.g. Award, Bravo etc. Even used on a one-off basis it surely would have been more robust and cheaper!

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