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…