Legal Services Commission procurement judged ‘unlawful’ and ‘irrational’

Note - not just of interest to legal aid followers, this may have wider implications for public sector procurement people.

The UK Legal Services Commission (LSC) has lost in the High Court the case brought by the Law Society.  Without going into all the details, two judges ruled that the tendering process for new family law legal aid  contracts was "unfair, unlawful and irrational".

The tender resulted in the number of firms able to offer family legal aid from 2,400 to 1,300.

What struck me as interesting from what I saw of the judgement (and I haven't see the whole thing yet) was that the judge did not appear to focus on the reduction in suppliers as being 'unfair' in itself.  Rather it was one of the evaluation criteria - the need for suppliers' caseworkers to have a particular accreditation - where he considered the firms bidding hadn't had enough notice that this was going to be a key factor (it hadn't been for previous tenders in this area).

This meant that the LSC had "arbitrarily and unfairly" distinguished between providers. (There may also be a question around whether this criterion is actually correlated with 'quality'; if it can be proved that it isn't, then again it cannot be a valid evaluation criterion. )

While this is a pretty specialist procurement area, and I wouldn't want to read too much into it, it might suggest yet another challenge that suppliers can make against public procurement decisions.  We already know that the courts are very keen on transparency of evaluation criteria.  This judgement suggests that even if criteria are transparent, if they are irrational in terms of their link to quality / value; or unreasonable in terms of the bidders not having time to adjust themselves to a 'new' requirement, then bidders might have a good case for complaint.

So in a well established market, if you introduce a new requirement for bidders, be sure you have given them reasonable notice and time to take appropriate action in order to have a fair chance to bid. Otherwise you too might be perceived as acting "arbitrarily and unfairly"!

Public procurement just gets tougher and tougher...

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