More than 120 criminal legal aid firms will refuse to take part in Legal Services Commission plans to pilot best value tendering (BVT) unless they are indemnified against transfer of undertaking, protection of employment (TUPE) actions arising from it, the Gazette has learned.

The commission wants to start piloting BVT in Greater Manchester and Avon & Somerset from 4 January 2010. The bidding process will affect 176 legal aid contracts with 141 firms. So far 124 firms have refused to participate without a TUPE indemnity.

Allan Maidment, director at Salford firm Maidment who is leading the protest, said firms that are unsuccessful in their bid for a BVT contract are likely to go out of business, but redundant staff may be able to transfer to firms that did win a contract under TUPE. ‘These firms could be driven out of business themselves by the influx of unwanted extra staff and by the cost and management burden of defending against TUPE claims,’ he said. ‘We’re asking the LSC to indemnify us against TUPE actions as the price of our cooperation with BVT.’

Gordon Turner, founder of London firm Partners Employment Lawyers, who is advising the protesting firms, said LSC chief executive Carolyn Regan wrote to him last week to say that providers should take advice and factor the risk and possible cost of TUPE into their price-competitive bids. Turner said: ‘My concern is that the LSC is hedging its bets and passing the risk on to the law firms. It’s likely some firms will avoid risk altogether by just bidding for the work they already have.’

Matthew Claughton, managing partner of Manchester firm Olliers Solicitors, noted that the LSC has offered TUPE indemnity in very high cost cases, but seemed reluctant to give the same assurances to other legal aid lawyers.

An LSC spokesman said the commission does not think TUPE rules will apply.

Law Society chief executive Desmond Hudson said: ‘TUPE is just one of many difficult and complex issues thrown up by the proposed introduction of BVT. The application of the TUPE regulations is highly technical and is dependent on the facts in each case. The Law Society believes that it is yet another reason why BVT is so inappropriate for this market. The Society is considering how it can help members in this matter.’

Meanwhile, criminal lawyers also called on the LSC to delay the pilot scheme by three months because it has still not published regulations on the new bidding process. Franklin Sinclair, senior partner at Manchester firm Tuckers, said: ‘It’s now two weeks before Christmas and we have not received any of the tender documentation – it’s just a joke.’

An LSC spokesman said it would publish the information this week.