Whether firms fared well or badly in the duty contract bid round, the uncertainty is far from over
Since April 2013, there have been three government consultations, several policy u-turns, unprecedented strike action by both the bar and solicitors, spats between the two sides of the profession, legal action and ministerial change.
However much they dreaded it, many criminal defence practitioners hoped the duty contract announcements would bring resolution and finality. But just when the Legal Aid Agency was supposed to notify firms of the outcome of their bids for duty provider contracts (set to cut the number of contracts from 1,600 to 527), what came instead was another consultation (see page 5).
The announcement of the results in the 85 procurement areas was delayed until 15 October 2015, and on that day the outcomes were drip-fed to anxious practitioners between 8.45 am and 11.45 pm, sparking much criticism of the agency’s handling of the process.
Contract winners and losers
Even after the results of the bidding were given to firms, the LAA was unable to provide information about the winners and losers, stating it could not ‘publicly confirm the names of successful bidders until the contract confirmation and verification process is complete’.
But even as the results started to come through, there were surprising outcomes. Some large firms got what they wanted: national giant Tuckers got all the 18 contracts it bid for; the Johnson Partnership bid for and got three contracts; Burton Copeland got both the contracts it wanted; and Cartwright King got all of its nine.
Others, especially some large London firms, did very badly. GT Stewart bid for 22 contracts and was awarded only one; Kaim Todner said it was ‘not successful’ in its bids. Elsewhere, East Midlands firm VHS Fletchers got neither of the contracts it wanted; and North East firm Kyles Legal Practice bid for six and was awarded none.
Criminal Law Solicitors’ Association chairman Bill Waddington’s firm Williamsons is the largest criminal defence practice in Hull, but was unsuccessful in its single contract bid. The outcome of the bid round was, he said, ‘difficult to interpret’.
‘There have been reports of shock and surprise from some places where large firms failed to get the contracts they bid for and smaller ones were successful. It has not been a case of big is beautiful,’ he noted.
In Essex, all seven firms that bid for contracts were successful, as only seven were up for grabs. Things did not go so smoothly everywhere. One firm that had bid for contracts in Cambridgeshire and Suffolk was mistakenly awarded one in Cheshire. The bidding process had to be extended in two areas, Devon (Devon & Cornwall 1) and the Isle of Wight (Hampshire 2), where the LAA didn’t receive enough bids.
Aside from the distress over some of the results, there was anger that the Public Defender Service, part of the LAA that employs solicitors and barristers to carry out criminal defence work, was ring-fenced and given a share of the work in the four areas in which it operates without bidding.
‘There have been reports of shock from some places where large firms failed to get the contracts they bid for and smaller ones were successful.’
Waddington predicted there would be a ‘tsunami of litigation’ that could bring the process to a standstill and delay the January start of the new contracts.
His assessment seems correct. The day after the results were announced, John Halford, partner at Bindmans in London, confirmed that he had received 50 requests from firms looking to challenge the process, adding: ‘We’re getting calls every couple of minutes.’
Whistle-blower allegations
The situation was made even more uncertain by revelations from an LAA insider, two days before the results were announced, claiming there were significant flaws with the assessment process.
Freddie Hurlston had been part of the assessment team between June and October 2015, working on the 1,000 or so bids submitted to the LAA. He claimed that many of the LAA staff used to assess bids had no knowledge of legal aid and no previous experience of public sector procurement. Some had been drafted in from Brook Street temporary staff agency, he said. The assessment process had become inconsistent, with, for example, one firm bidding across a number of procurement areas going from ‘being a top-scoring firm that would have got a contract to a low-scoring firm that would not have got a contract’.
Hurlston told Legal Action: ‘Parts of the assessment process were OK and not every decision is going to be wrong, but there were key elements where it did not follow best practice, most notably in the failure to use properly qualified and trained staff, the failure to consider the bids anonymously, and the failure to have a single moderator per procurement area.’
Instead, he said, there were two moderators per area: one who dealt with generic bids from larger firms and a second who dealt with the bids from smaller firms, whose replies were less generic.
Hurlston said he did not see signs of deliberate bias towards or against specific firms, saying that it was more an issue of ‘incompetence’.
But he stated: ‘They [LAA] didn’t like the generic bids. Once they realised firms had made generic bids, they took against them and as a consequence the firms were marked down.’ Whereas, he suggested: ‘I’d have expected to have seen fairly generic bids for most of the questions in the tender – that’s a good thing – you’d expect large firms to have efficient processes throughout their organisation.’
The end result, he said, is: ‘There are some firms with substantial reputations and of high quality, that have met peer review and Lexcel standards, who haven’t got contracts.’
He added: ‘In any bid process, there will always be winners and losers. But because the agency didn’t follow best practice, they cannot be confident that the bid process was fair. And they cannot be confident that it will deliver the restructuring of the market that they wanted.’
Hurlston insists he was motivated to speak out in the public interest and because he had exhausted the internal process for raising concerns. He claims to have written to the head of central commissioning, Kerry Wood, and the chief executive, Matthew Coats. He received only a brief response from the former, and no reply from the latter.
Hurlston has solid legal aid credentials. He joined the Legal Services Commission (the LAA’s predecessor) in 1997, having previously worked at the Lord Chancellor’s Department on the beginnings of legal aid reform. He started out at the LSC as a junior-to mid-level policy officer and rose to become the head of criminal justice initiatives. As a senior policy adviser, he had also worked on the development of the LSC’s thinking on competitive tendering and standard fees for police station work. A former colleague who worked with him around that time recalls he was quiet and serious about his work, certainly not seen as a trouble-maker.
He left the commission in 2009, taking voluntary redundancy, which was offered across Whitehall departments at the time as part of cost-cutting measures.
Hurlston said he is ‘passionate’ about legal aid and would ‘happily’ give evidence in any litigation resulting from the tender process. He has shared his detailed concerns with the various representative groups and Bindmans.
‘If I was in the Legal Aid Agency’s position, I’d take a breather and ask someone independent to have a look at the process. I can’t see the need for so much speed,’ he suggested.
But he added: ‘There is intense pressure from ministers and senior civil servants to meet the deadlines set, which means that things are often not perfect.’
A spokesman said the LAA ‘strongly denies’ Hurlston’s allegations. The agency followed a ‘robust and fair process’ in assessing duty tender bids and had ‘taken additional time to notify bidders precisely to make sure these important decisions are right.’
The spokesman added: ‘Assessors received a comprehensive training package to ensure transparent, consistent and fair treatment of all applicant organisations. The assessment process has been subject to careful moderation and management at all stages.’
What next?
Aside from the individual challenges from firms that were unsuccessful in their bids, Bindmans’ John Halford (pictured) says the allegations made by Hurlston could potentially form the basis of a legal challenge, if it were shown that the entire system was flawed to the extent that it provided an unlawful result on a national scale. In addition, the proposal in the latest MoJ consultation, to prevent firms from instructing their own in-house advocates, could lead to challenges. Halford said that if firms were marked up and won contracts because they could use in-house advocates, losers might claim that those results were no longer valid.
He added that while Hurlston’s allegations came as a surprise, his claims are consistent with the concerns raised by practitioners throughout the process, most notably in the judicial review challenge.
Just because in principle the court found the scheme to be lawful, Halford said, it does not mean that putting it into effect will be lawful: ‘The courts didn’t examine how the system would work; only if the decision to do it was lawful.’
The end result is that, even after the announcement of the bid results, the uncertainty for the profession is set to continue. ■