LSC: goalposts aren’t moved, just very bendy

Sorry. After a moment when it looked like we might get back to housing law, the LSC has interrupted again. And it is almost as if the LSC reads NL!

Following our post here on the LSC’s statement in version 2 of its FAQ for the verification exercise on ‘not being able to do the number of matter starts bid for’ and which amounted to “Oops, have you overbid? Come here, you silly, give us a hug and we’ll make it alright by dropping your requirements”, the LSC has been fiddling with its FAQs again.

The answer to Question 3.2 in version 6(!) of the FAQ, released today (1 September) now reads as follows (in bright red):

3.2 I am concerned that I will not be able to deliver all the matter starts that I have been allocated, what should I do?
You will be required to deliver both the volume and breadth of services for which you have successfully tendered and been allocated matter starts in accordance with your bid and ranking (if applicable to your tender). However, as part of the verification process the LSC is giving successful applicants who are concerned that they will not be able to deliver the volume allocated to them an opportunity to review their allocation and request a reduction. Where such requests are received we will consider the implications for the procurement area with a view to reallocating any surplus matter starts to other providers in accordance with the allocation process set out in the IFA (answer updated 1 September 2010).

How to explain this change? Well, the LSC says:

We have today published an updated version of our verification FAQ. We have taken the opportunity to correct an answer where an incorrect earlier version had been uploaded in response to question 3.2.

Hmm. We should note that there was another version of the FAQ in the interim, v.5, in which the same answer to 3.2 was given as in v.2 (No, I have no idea what happened to v.3 or 4. They never appeared for public consumption, but whatever horrible errors v.4 contained, the answer to 3.2 apparently wasn’t considered to be one of them.) So that is two (public) earlier ‘incorrect versions’. We should also note that this is far from being a reversion to the answer given in v.1 (which was in effect “do the matter starts you have been allocated or else”).

I can only assume, being a tad cynical, that this is an attempt to avoid a challenge of the kind hypothesised in my earlier post (or indeed via procurement regs.). The practical effect is the same. The LSC can/will drop your required matter starts if you don’t think you can do them, but now hedged behind a presumption that you will do the matter starts and a request/considered response process on the part of the LSC.

But let us say a chunk of matter starts are ‘returned’ to the LSC in this way, what happens? The LSC say they will have a ‘view to reallocating surplus matter starts to other providers’, but in the next breath, at 3.3, we find:

3.3 Can I ask for my allocation of New Matter starts to be increased?
For the avoidance of doubt, there will be no increase to your awarded allocation of matter starts as a result of this exercise other than where receiving your full allocation was dependent on you recruiting for a post that was vacant at the time of your tender and you have done this.

‘There will be no increase to your awarded allocation of matter starts as a result of this exercise’ would appear to rule out the reallocation of ‘surplus’ starts to those who have already had an award. So, three options:
a) The LSC is quite simply terminally confused about what the hell it is doing
b) The LSC will award ‘surplus’ matter starts to those who already have a contract regardless of 3.3
c) The LSC will offer contracts of ‘surplus’ matter starts to bidders who did not get a contract award in the first place.

Frankly, my money is on a). I suspect b) would still be grist to a public law challenge of one form or another, as previously discussed. But c) is an intriguing proposition…

m4s0n501
Posted in Various (non-housing) and tagged , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

7 Comments

  1. I reckon you’re on the money NL. I had been trying to sort out some of the nonsense with these FAQs on a lateral point, largely arising out of the fact that firms and organisations had been requested to send forms in that had already been submitted. It turned out that that this was all down to was whether you bid as part of a consortium or not – if you did but didn’t bid for all categories then you were told, for example, you hadn’t submitted all the supervisor forms (obviously, assuming you were not one of the minority who bid for all 3 subjects but also as a consortia)

    Anyway, to cut a long story shortish, the LSC admitted to me they messed this up and said they would revise (or add) a new version 2.6 of the FAQ

    They did, in a manner of speaking. There is now a revised 2.6 however, it is a gloss-over in respect of what the problem was and to my mind has not really been ‘resolved’. You can read my displeasure about this on ilegal, here:

    http://legalaidandme.proboards.com/index.cgi?action=display&board=iswl&thread=917&page=2#3420

    The reason I say all this is in respect of the confusion about the different versions of this FAQ you quite rightly point out. The last version on display to the public was version 3, even though the download title was version 5. This was because the LSC had amended version 3 and turned (via swapping track change versions between policy and legal teams, no doubt) it into version 5 whilst their bod was trying to sort out this point on the eportal doing things it shouldn’t be in respect of consortia. In other words, no-one outside the LSC ever saw the real versions 2 or 3

    As it is, they have now gone to the ‘proper’ numbering and the latest version is now 6

    You need to be a bookmaker to follow this!

    As for the LSC seeing what you’ve written NL well, could be! Although, they’ve said to me on a number of occasions, including the recent contact with one of their big-wigs on my FAQ point above, that their firewall doesn’t allow them to read anything that “might be a blog”

    Yeah, I’ll bet, I think they’re just as interested (and in many respects in the dark) as to what’s going on as everyone else is. ilegal and Nearly Legal in ‘Favourites’? Wouldn’t surprise me

    • I know full well that some people from the LSC used to visit NL.

      Maybe they can’t at work any more (and ‘nearlylegal’ certainly falls foul of the more simple minded of smut/spam filters in any event). But I do rather doubt that they aren’t reading your site and (given some very specific search terms I’ve had lately) this one.

      Or, they may have had a pre-action letter or two. That tends to bring about a revision of one’s FAQs…

  2. According to the Law Society the Admin Court [Mr Justice Irwin I think] granted their app for an expedited hearing – this will be heard on the 21st September with Judgement on the 24th September. The court ordered that no contracts will be issued in the meantime although the lsc will continue work on appeals and verification in the meantime – our current contracts the LSC agreed will be extended by one month [I thought that they said that they could not do that due to some EU procurement law !! although presumably that doesnt' preclude contracts starting on 14th and running in parallel] So I guess we’ll be closer to knowing our fates by then.

    • Family tender only, though. It doesn’t affect the SWL tender. Not sure about those who went the Housing/Family route.

      • Correction 06/09/2010. It appears that ALL civil contracts are extended by one month. Quite how that works is a mystery. What if one runs out of the pro-rata’d matter starts? What about the ‘new entrants’ waiting to start on 14/10/10. Hmm.

        • Further correction. LAG and the Law Society took the view that ALL contracts were extended. This now apperas to be less certain, following a Law Society/LSC meeting. See here

          So, SWL contracts may or, on the other hand, may not be extended. I always thought certainty was over-rated.

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