Whistleblower claims legal aid contracting process flawed
A former insider at the Legal Aid Agency has alleged that the contract procurement process due to conclude imminently has been botched.
Criminal defence firms are due to find out tomorrow if they have won one of a reduced number of contracts to provide 24-hour cover at police stations.
But Freddie Hurlston (pictured), who worked as a bid assessor for the agency between July and September this year, has contacted the Gazette to make a number of incendiary claims about the staffing and assessment process.
So inadequate was the LAA’s handling of the exercise that the Cabinet Office eventually became involved, he alleges.
‘It is generally accepted as best practice in public sector procurement that suitably qualified staff are used, that they are properly trained for the job and that a timetable is followed that allows due consideration of the bids,’ Hurlston told the Gazette.
‘None of these best practice objectives were met.’
The LAA denied the allegations, describing the assessment process as 'robust and fair'.
Hurlston, who was previously head of criminal justice system initiatives at the Legal Services Commission, said many of the staff assessing the bids were from Brook Street temporary staff agency on around £9.30 an hour and had no knowledge of legal aid or previous experience of public sector procurement.
He said the ‘very limited’ training did not cover specific issues for each question in the procurement exercise or what to look out for when awarding points.
The agency received around 1,000 bids. Hurlston said there were 17 questions in each bid and the questions were sub-divided into three or four parts leading to a total of around 50,000 answers to be assessed.
‘It was clear after a few days of assessment that there were insufficient staff to assess all the questions with any quality,’ Hurlston said.
‘Brook Street staff were told, contrary to their hourly rate contracts, on 2 September that they would not be [fully] paid unless they assessed 35 questions a day.’
Hurlston said daily performance figures were posted on a board in the assessing room.
Members of the team who did not meet the daily target rate were sacked, ‘placing pressure on quantity rather than quality on the other members of the team to the detriment of the assessment process’.
Towards mid-September, 10 staff from a law firm were recruited to help assess the bids, Hurlston said.
Staff were also recruited from across the LAA to ‘assist with the increasingly frantic effort to assess the responses’ by the end of September, ‘leading to around 50 people working on assessing the bids, many of them with little or no training’.
Hurlston said the moderation process was ‘initially consistent’, with one person moderating all the bids in one procurement area.
‘However, once the LAA rather belatedly became aware that bidding firms had used some generic answers to answer questions when bidding across a number of procurement areas, the LAA used a “super moderator”… to write “generic responses to the generic answers".'
Hurlston said the LAA seemed to view generic responses negatively and these generic responses ‘tended to be scored lower than initial assessment and moderation. This was to the detriment of firms bidding in more than one area’.
Hurlston said one firm bidding across a number of procurement areas ‘was so disadvantaged that it went 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 said an official from the Cabinet Office raised concerns about the validity of the assessment process at a meeting on 1 October.
Hurlston raised his concerns with LAA chief executive Matthew Coats on 6 October by email but has not received a response.
‘The LAA did not follow good practice when assessing the bids and, as a consequence, the results may be unfair to some firms,’ Hurlston said.
Law Society president Jonathan Smithers said: ‘We can confirm that an individual has contacted the Law Society with concerns about the duty solicitor tender process and that we are taking these concerns seriously.
‘We have written to the Ministry of Justice requesting a full response supported by evidence which demonstrates that the evaluation of the tenders was conducted fairly and appropriately.’
A spokesperson for the agency said: 'The LAA strongly denies these allegations. We have followed a robust and fair process in assessing duty tender bids. We have taken additional time to notify bidders precisely to make sure these important decisions are right.
'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.'