The tender process for duty provider crime contracts is riddled with anomalies and even very good legal aid firms will struggle to participate.
That is the verdict of the Law Society following the first of its roadshows on the procurement of criminal defence services. As the deadline passed yesterday for questions about the crime contracts tender, the Ministry of Justice announced that a guidance document is being prepared that will be published here.
Last week the Society and practitioner groups vowed to pursue separate legal actions against the plans. In the wake of yesterday’s opening roadshow in London, head of legal aid Richard Miller pointed out that the process may be ‘quite routine’ for giant corporates like outsourcing specialists Serco and G4S, who have entire departments employed to submit such tenders.
But he added: ‘For busy practitioners who have never seen a process like this before, it is highly problematic. To give them only two months, over Christmas, to complete the forms is inadequate.’
The start of the process on 27 November coincided with the government’s announcement that it would press ahead with two-tier contracts and a second fee cut of 8.75% next summer. The MoJ’s latest, hurried consultation on the plans was started days after the High Court ruled in September that the department acted unlawfully when introducing the reforms.
The deadline for tender applications is 29 January and contract work will start on 1 October.
‘There are numerous anomalies in the forms,’ Miller added. ‘Large firms which have separate police station and litigation departments may struggle to find anyone who meets the casework experience requirements, because no individual conducts an “entire case”.
‘There is no clear logic why a firm in Ealing should score maximum points if they have a caseworker who has conducted eight offences against the person, but in Avon and Somerset 1, you need 33 cases.
‘Firms bidding in London may need several managers just because the work is divided into 32 procurement areas, whereas a firm conducting the same volume of work in Nottinghamshire will need only one.’
The rules relating to delivery partners are so tough that it will be difficult for any firm to meet the requirements, according to the Society.
‘In particular,’ Miller added, ‘the refusal to permit substitution means that any firm relying on a delivery partner will be taking a massive gamble on that firm still being in business in 18 months’ time.
‘The requirement to have a signed written agreement before the tender is submitted is going to be almost unachievable, given that firms did not know the final shape and values of the contracts on offer, or the contract terms that will apply, until the end of November.’
Miller said firms will need to take urgent advice from their compliance officer for legal practice regarding whether they can submit a bid without falling foul of the principle of sound financial management of the firm. The COLP will also have to sign forms confirming that everything in the form is accurate and true.
He concluded: ‘All in all, we think that the answer to the question who gets through this process to be awarded the contracts is going to be far more arbitrary than the LAA intended, and that even very good firms are going to struggle to participate in this tender.’