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28/07/2010

Social Welfare Law contracts – update

The LAG news blog is reporting that while Family contracts resulted in ‘carnage’ with an estimated 1300 out of 2400 firms being awarded contracts – about 54%, in Social Welfare Law the LSC is saying that it believes ‘around 70%’ of existing providers will be awarded contracts, but they are still doing ‘due diligence’ in 5 areas.

So if 46% failure is ‘carnage’, what is 30%? Two thirds of a carnage? Perhaps carnage lite? A triple decimation?

Certainly the 70% figure is not standard across the country. For example, my understanding is that there are only three SWL providers in Birmingham who were offered contracts (taking consortia as one, which may be unfair, depending how the LSC is doing its percentages). I can now publicly confirm that Community Law Partnership in Birmingham are one of the high profile and high quality private firms not to get a contract offer. CLP are asking for letters of support as they will be appealing. See Chris Johnson’s comment on our earlier post.

And then there are those who bid for a Housing/Family combination. How do we even begin to assess that? Would it be a ‘Family’ style failure rate of 46%, or would it only be the ‘better’ firms that did such a combo? No way to tell.

There is a kerfuffle in the Family sector over firms bidding for contracts without having the necessary staff in place, with other firms crying foul. If the same thing has happened in Housing, the jobs ads over the next few weeks should be interesting – staff to be in place before the October start date, of course.

Meanwhile, the Law Society continues to downplay the chances of a bringing a challenge to the contract process, with an email yesterday stating:

The Law Society is urgently seeking legal advice on the social welfare and family law tender results. However, even if there is a viable challenge, it is unlikely to provide a rapid solution to the problem firms are facing, which is why the media and Parliamentary lobbying effort is so important. The initial advice on the other civil contract tenders and results indicates that, based on available information, there is no obvious ground on which a challenge with merit could be made at this stage.

Despite how damaging the outcome has been, it is difficult to pinpoint within the mental health and immigration tenders any breach of procurement law or any decision the Legal Services Commission (LSC) has made that would be so irrational as to meet the judicial review threshold. However, the extent of the reduction in the number of suppliers in family and social welfare, which contrasts vividly with the LSC’s stated intention that the supplier base would not be significantly reduced, and risks creating major gaps in the supplier base, may give rise to additional arguments that could be mounted. We are actively keeping the situation under review.

It is however vital that each individual firm appeals any unsuccessful tender outcome, whatever the reason, within the prescribed timescales.

We appreciate many of our members have made successful bids but for the reasons outlined above with the consequent effect on clients, we have written to the legal aid minister Jonathan Djanogly requesting an urgent review of the tender results and their effect on legal aid provision.

We would urge practitioners who have been unsuccessful to raise the issue with their local MPs and media. You can help our lobbying by highlighting the issue to your MP and urging them to contact the legal aid minister.

Draft letters to MPs and Media are on the Law Society’s site.

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.

5 Comments

  1. Patrick Torsney

    @ Will: I think the question on everyone’s mind is exactly how do you challenge it without jeopardising the assumed financial stability of those organisations who actually succeeded in being offered a contract?

    GIven that it was a full procurement exercise complying with EU procurement law, I think it’s pretty much a done deal, unless they scrap the whole thing and start over?

    The Law Society are walking a fine line with this and I imagine they know it

    By the way, sorry for not posting about how saddened I am by the whole process and disappointed for those who have not been offered contracts. Sorry also for not using the words ‘carnage’ or ‘mayhem’ or ‘destructive carnage mayhem chainsaw massacre”

    I am very saddened. I am also just a little angry that the whole thing happened in the first place

    I want to express my sympathy for LAPG, The Law Society and the advice networks here. It must be very difficult for them to continue acting so surprised at the outcome when it has always been a safe bet that it was inevitable. Consider some of the variables: the model of scoring within the Selection Criteria, its incentive to over-bid and the existing supplier base being forced into direct competition with each other for lower volumes of work than existed prior to the exercise

    Reply
    • NL

      @Patrick
      I don’t think the situation can be that clear cut. The presumed ‘stability’ of those who have contract awards ignores the fact that there is an appeal process built in to the tender process. Unless that appeal process can result in the re-allocation of matter starts, then it would be a pointless exercise and surely open to challange. Unless the LSC has a whole load of additional matter starts tucked away in expectation of successful appeals, there has to be potential reallocation (and even if it did have these extra starts, what will happen to them where there are few or no successful appeals. Would firms suddenly be asked to take more?).

      The whole thing remains a mess, but the outome cannot be as done and dusted as you imply. And the Law Society is now calling for a suspension of implementation and re-evaluation.

      Reply
  2. Patrick Torsney

    I think it’s pretty clear from the letter that the request is really only in respect of Family, NL. If there is a ‘deal’ then I can’t see it stretching any further

    I could be wrong

    You raise a couple of interesting questions in respect of appeals and reallocation of NMS. Whilst I think the LSC may believe the IFA would allow them to reallocate NMS, I don’t actually think they would do this or, most likely, ever planned to do this. If they did, it would certainly be a shock to those who actually received awards and who have set the ball rolling for October 2010! The notification letters they have received only say they may yet receive a higher NMS offer prior to contract start, not a reduced one. It’s not beyond the limits of imagination but, holy smoke, can you just see the storm that would cause!

    The appeals process is pretty perfunctory – one appeal to the LSC with no further appeal and only limited grounds on which to lodge an appeal in the first place – and definitely no appeal against the number of NMS you have been offered. My guess is that I don’t think the LSC ever thought that there would be many successful appeals, I think they thought their whole tender process to be pretty water-tight

    On your reallocation point again, it does make me wonder whether the LSC in fact do have a ‘war chest’ of NMS and will distribute these once the appeals are over where any remain. I have seen some pretty strange awards in some areas, which are hard to reconcile with the NMS that were available and other providers who were likely to have bid

    It might be that the LSC has held back NMS even from those ranked 1st in order to re-distribute, to either successful appellants or to those who were successful in the first place and haven’t already been awarded the total they originally bid for. This would be quite outrageous however, so I’m no doubt wrong

    Anyway, all this is conjecture on my part, with little or no real value, so I’ll stop blathering on. Thanks for the opportunity to post NL

    Reply
    • NL

      Patrick

      The letter clearly comes out of family, but would impact the whole civil bid round. In any event, given the interplay of family contracts with, for example, housing contracts, it can’t be separated out.

      I agree on the appeal process – none of the options wholly make sense. What if an appeal resulted in a joint first place? If that resulted in a handful of matter starts from some reserve held by the LSC rather than the proper split, that would surely be the basis of a legal challenge by the successful appellant. On the other hand, a reduction of matter starts may be challenged by the previous awardee, given that, as you say, there is no mention of a potential reduction.

      Reply
  3. kris

    Bring back the Green Form!

    Reply

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  1. William Flack Blog » Blog Archive » Civil Contracts 2010 – Surveying the Wreckage - [...] we do know is that 30% of supplier organisations with Social Welfare Contracts have not been offered new ones…

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