The Crown Commercial Service’s recently launched tendering process for legal services to the ‘wider public service’ (WPS) – local government, the education sector, the NHS and quangos of many sorts – was described as ‘appealing to SMEs’ in the consultation document of November 2017.

But the reality of the tender documents that were published – with very little notice, just before the last bank holiday and half-term week – must be inducing feelings of despondency in many SME law firms. This is especially so in those firms that already have WPS customers, who have indicated that they would like to use the panels that are created through this process as it is potentially an easy way for them to meet their obligations to tender work.

Originally, the CCS stated that there would be no upper limit to the number of firms that might get on to the panel for Route 1 (now Lot 1), but there is now a limit, set at 80. While that might sound quite a lot, the stated intention that firms might apply for just one legal specialism (out of the 14 in Lot 1) in just one of the 12 NUTS 1 regions of the UK (which creates a matrix of 168 boxes to be filled) makes 80 look rather a small number. The process makes price the sole initial selection criterion – and that is a weighted price submitted across all 14 of those legal specialisms and 12 regions. A large regional firm tendering for all 14 specialisms gets to submit one set of prices, as does an SME firm pitching for just one specialism. One wonders whether the CCS, supposedly the commercial arm of government, has any grasp of market forces or how legal services work.

The suspicion that price is the only really important criterion is reinforced by the fact that firms bidding for Lot 1 are asked only two questions about the quality of their service – and have a maximum of just 4,000 characters to answer each one. Perhaps the civil servants of CCS think that insisting on firms having ISO 9001 or equivalent processes will ensure quality (it is not just ISO 9001, either; 27001, 27002 and 22300 are required as well). These ISOs have never been seen as very appropriate for small enterprises, especially professional services ones.

One imagines that this requirement, which was not discussed at all in the consultation process, may be the source of rich pickings for the standards consultants, as firms that decide to tender have no choice but to declare that they are working towards the accreditations. Carillion, let us remember, had a host of ISO accreditations.

Whether the CCS has deliberately created a process that will disadvantage SME firms, or done that because they have been unable to think through the consequences of the process they have created, is a moot point. Almost all of the legal specialisms available to Lot 1 firms are also mandatory or optional specialisms for the national, full-service firms bidding for Lot 2, of which 13 will be appointed for England and Wales alone. If there are gaps in the provision in the Lot 1 panel, they can be filled by Lot 2 firms, possibly at a higher price.

Given that the CCS intends to skim off 1.5% of the spend through the contract through what is in effect a stealth tax on panel firms, that might suit them very nicely.

A reluctant bidder, name and address supplied

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