Duty contracts: what firms need to know

Last week’s Law Society roadshow event explaining just some of the elements of the tender process for crime duty contracts left me feeling overwhelmed. So I can’t even begin to imagine what criminal defence practitioners must be feeling right now.

The tender process may have been suspended pending the outcome of this week’s judicial review, but as Society president Andrew Caplen explained: ‘The outcome of litigation is never certain. You should all continue to think about how you might construct any bid you wish to submit in the event that the process does resume.’

If judgment goes against the Law Society and practitioner groups the Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association, and the tender process restarts immediately, firms may have as little as five weeks to submit their bids.

So what do firms need to know? The following points are a summary of just some of the aspects of the tender process, that Richard Miller, the Society’s head of legal aid, highlighted at the London event:

1. Timetable

Firms are bidding for a four-year contract, which the Ministry of Justice can extend by up to a year. They are committed to delivering the services for the full four years regardless of what happens, such as police stations moving, courts closing down, a fall in work volumes. But if the volume falls by more than 25% against predicted volumes, firms have a one-month window - between 1-30 November 2017 - to serve notice to terminate their contract, and they will be entitled to compensation from the ministry.

2. Quality standard

You must have the relevant quality standard – either SQM (Specialist Quality Mark) or Lexcel. If you’re relying on SQM, you must have, and have passed, an audit by the SQM Delivery Partnership by 30 June.

3. Office space

As part of the essential criteria, if you do not currently have an office in the procurement area you wish to bid for, you must be able to identify the office by 30 June, and have the office up and running, ready to deliver the services, by 1 October. (A delivery partner’s office does not need to be in the procurement area.) That said, you will score more points at the selection criteria stage if you already have an office set up and established in the procurement area.

4. Management experience

The manager must work within the applicant organisation. He or she must be deployed for at least 17.5 hours on the particular procurement area contract and cannot be deployed on more than two contracts. So, for instance, many firms in London will likely bid for more than two areas. If they bid for 10 areas, they will need to name five managers who meet all of the experience criteria.

5. Flexibility

You must demonstrate how you will deal with the risk of dependency on the duty provider contract. You score higher marks if you have a diversified income stream and credible plan to develop a business to include sources of income other than publicly funded work.

6. Delivery partnerships

You can bid with up to three delivery partners. But the applicant organisation must do more work than any individual delivery partner. In rural areas, the applicant must do at least 30% of the work, in urban areas that figure rises to 45%. A delivery partner cannot do more than 40% of the contract value.

If you name a delivery partner, you must commit to them until the end of the first year of the contract. If the delivery partner pulls out before the contract is awarded, your bid for that procurement area will be rejected.

Firms must have a written delivery partnership agreement in place by the time they submit their tenders.

7. And the winner is…

Firms will not be notified if they have been shortlisted. Awards are due to be made mid-June. For those winners who bid for multiple areas, it’s a case of ‘all or nothing’ when it comes to accepting, even if the offer isn’t all that you wanted.

8. Check please

Review the tender documentation and get someone else to double-check it.

The period between the contract starting (1 July) and services commencing (1 October) is the ‘verification process’. The Legal Aid Agency will check to ensure you have in place what you said in your tender. If you don’t, you could lose your contract.

9. Essential reading

Despite the current suspension of the tender process, you must read all the documentation (the Legal Aid Agency’s responses to the FAQs that it published on 22 December is 142 pages long so start reading now if you haven’t done so already) to understand what is required and how to move forward.

10. Self-assessment

Once you have done all your reading, ask yourself the following questions: are you going to bid? Can you demonstrate to the Solicitors Regulation Authority, if required, that you have thought through the risks? What procurement areas are you going to bid in? Which, if any, delivery partners are you going to work with? If you’re not going to bid, what is your business plan outside the duty market?

The outcome of the JR could be handed down by the end of the month. As mentioned earlier, depending on the outcome firms may only have around five weeks until they have to submit their tenders. ‘Once you’ve looked at the award criteria in particular, you’ll realise it’s a hell of a lot of work to complete a good bid,’ notes Miller. ‘Hope for the best, yes, but prepare for the worst.’

For more information visit the Law Society’s website.

All LAA guidance on the 2015 legal aid crime duty tender can be viewed on the government’s website.

Monidipa Fouzder is a Gazette reporter

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