Funding – European Union – Public procurement – Equal treatment

Azam & Co v Legal Services Commission; Ch D (Mr Justice Briggs) 5 May 2010

The claimant firm of solicitors (S) claimed relief under regulation 47 of the Public Contracts Regulations 2006 in respect of alleged breaches of duty by the defendant commission.

Through participating in the commission’s tendering process, S had obtained a general civil contract for immigration law. Over the following years the commission sent S replacement schedules and it specified deadlines for their return, which S complied with. The contract was effectively automatically renewed without S having to participate in further bidding processes. Approximately six years after the initial tendering process, an advertisement was published in the Law Society Gazette referring to a forthcoming invitation to tender and identifying the closing date. The commission published the invitations on its website and specified the deadline. It later sent a letter to existing suppliers referring to submitting invitations to tender by the deadline, that invitations for immigration law had been published and that information about how to tender could be found online. S missed the deadline for submitting its tender and the commission refused its application for permission to tender out of time. It was common ground that the regulations applied and that the commission had to act in accordance with the principles of proportionality and not to frustrate legitimate expectations. S submitted that: (1) the commission’s past conduct, including a similar uniformity of direct notification of deadlines in the context of all tender processes in civil and criminal publicly funded work, created a legitimate expectation that S would be notified by a direct communication from the commission of the deadline; (2) by specifying the deadline on its website and in the Gazette advertisement but failing to do so in the letter, the commission treated potential suppliers more favourably than existing suppliers; (3) the commission’s refusal to grant a week’s extension to the deadline was disproportionate considering the effect on S and the public if no extension was granted and the absence of significant prejudice to anyone else if it was granted.

Held: (1) It was inappropriate to consider the way the commission notified its existing suppliers of deadlines generally as affording any basis for a legitimate expectation as to the conduct of a tender process. No legitimate expectations as to how the commission would conduct a tender process for civil publicly funded work could be derived from the manner in which it conducted tender processes in relation to criminal funded work. The two processes were regarded by the commission as separate and distinct. In relation to the commission’s prior conduct of the civil tendering process, there was no real repetition. The only true tendering process in which S had been involved before concerned the process approximately six years earlier. Therefore, although the commission notified deadlines by direct communication with every existing supplier, no legitimate expectation could be drawn from that conduct, taken on its own. Further, no legitimate expectation that the commission would send a further direct communication to all existing suppliers specifying the deadline for the immigration tender could have survived in the mind of a reasonably careful and diligent solicitor reading the commission’s letter.

(2) The commission chose a sensible pair of media by which to advertise the civil bid process, including the immigration tender. It had apparently also notified specialist associations. That approach was compliant with the equal treatment obligation as it treated existing and prospective suppliers in the same way and gave both classes an identical and sufficient opportunity to appraise themselves of the civil bid round and of the immigration bid tender process in particular. The reference to the process in the letter was little more than a reminder. Viewed from the perspective of a reasonably careful and diligent existing supplier, that reminder contained all the information reasonably required to enable the recipient to participate in the tender process.

(3) S missed the deadline because of its own lack of due care and diligence, rather than because of any fault by the commission. The immigration tender process was published expressly on the basis that deadlines were there to be complied with and no extensions were to be given. Granting an extension to S, occasioned by a failure to submit a tender on time which was not beyond its control might constitute unequal treatment of other tenderers. The principles of transparency and good administration also weighed very heavily in the balance against an applicant for an extension of time who was unable to point to reasons beyond its control for justification. It was therefore not a breach of the commission’s obligation to respect the principle of proportionality for it to refuse to grant the extension.

Judgment for defendant.

Abdurahman Jafar (instructed by Azam & Co) for the claimant; Paul Nicholls (instructed by in-house ­solicitor) for the defendant.