“26. The procurement process must comply with Council Directive 92/50/EEC, the 1993 Regulations and any relevant enforceable Community obligation. 27. The principally relevant enforceable Community obligations are obligations on the part of the Authority to treat bidders equally and in a non-discriminatory way and to act in a transparent way. 28. The purpose of the Directive and the Regulations is to ensure that the Authority is guided only by economic considerations. 29. The criteria used by the Authority must be transparent, objective and related to the proposed contract. 30. When the Authority publishes its criteria, which conform to the above requirements, it must then apply those criteria. The published criteria may contain express provision for their amendment. If those provisions are complied with, then the criteria may be amended and the Authority may, and must, then comply with the amended criteria. 31. In relation to equality of treatment, speaking generally, this involves treating equal cases equally and different cases differently. … 34. When the court is asked to review a decision taken, or a step taken, in a procurement process, it will apply the above principles. 35. The court must carry out its review with the appropriate degree of scrutiny to ensure that the above principles for public procurement have been complied with, that the facts relied upon by the Authority are correct and that there is no manifest error of assessment or misuse of power. 36. If the Authority has not complied with its obligations as to equality, transparency or objectivity, then there is no scope for the Authority to have a "margin of appreciation" as to the extent to which it will, or will not, comply with its obligations. 37. In relation to matters of judgment, or assessment, the Authority does have a margin of appreciation so that the court should only disturb the Authority's decision where it has committed a "manifest error". 38. When referring to "manifest" error, the word "manifest" does not require any exaggerated description of obviousness. A case of "manifest error" is a case where an error has clearly been made.”
“33. The Court recalls that the Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. Review by the Community courts is therefore limited to checking compliance with the applicable procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case T-145/98 ADT Projekt v Commission[2000] ECR II-387 , paragraph 147). 34. Moreover, it is essential, in the interests of legal certainty, that the Commission should be able to ascertain precisely what a tender offer means and, in particular, whether it complies with the conditions set out in the call for tenders. Thus, where a tender is ambiguous and the Commission does not have the possibility to establish what it actually means quickly and efficiently, the institution has no choice but to reject that tender. … 37. In response to the Commission’s argument that its Evaluation Committee was nevertheless under no obligation to seek clarification from the applicant, the Court holds that the power set out in section 19.5 of the Instructions to Tenderers must, notably in accordance with the Community law principle of good administration, be accompanied by an obligation to exercise that power in circumstances where clarification of a tender is clearly both practically possible and necessary (see, by analogy, Cases T-22/99 Rose v Commission [2000] ECR SC IA-27 and II-115, paragraph 56, T-182/99 Carvelis v Parliament [2001] ECR SC IA-113 and II-523, paragraphs 32 to 34; see also, more generally,Case T-231/97 New Europe Consulting and Brown v Commission[1999] ECR I-2403 , paragraph 42 and Article 41 of the Charter of fundamental rights of the European Union, OJ 2000 C 364, p. 1, proclaimed in Nice on7 December 2000 ). While the Commission’s evaluation committees are not obliged to seek clarification in every case where a tender is ambiguously drafted, they have a duty to exercise a certain degree of care when considering the content of each tender. In cases where the terms of a tender itself and the surrounding circumstances known to the Commission indicate that the ambiguity probably has a simple explanation and is capable of being easily resolved, then, in principle, it is contrary to the requirements of good administration for an evaluation committee to reject the tender without exercising its power to seek clarification. A decision to reject a tender in such circumstances is liable to be vitiated by a manifest error of assessment on the part of the institution in the exercise of that power. 38. It would, moreover, be contrary to the principle of equality, to which section 19.5 of the Instructions to Tenderers in the present case makes reference, for an evaluation committee to enjoy an unfettered discretion to seek or not to seek clarification of an individual tender regardless of objective considerations and free from judicial supervision (see, by analogy, Joined Cases T-112/96 and T-115/96 Séché v Commission [1999] ECR SC IA-115 and II-623, paragraph 127). Moreover, contrary to the Commission’s argument, the principle of equality did not preclude the Evaluation Committee from allowing tenderers to clarify any ambiguities in their tenders, since section 19.5 made express provision for such clarification to be sought and the Evaluation Committee was obliged to treat all tenderers in a similar manner with regard to the exercise of this power. 39. It is also relevant to recall, in the present context, that the principle of proportionality requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued and that where there is a choice between several appropriate measures recourse must be had to the least onerous (see, for example,Case C-157/96 National Farmers' Union and Others[1998] ECR I-2211 , paragraph 60). … 42. In those circumstances, the principle of good administration required the Evaluation Committee to resolve the resulting ambiguity by seeking clarification of the period for validity of the applicant's tender. 43. In addition, as regards the principle of proportionality, the Court finds that in the present case the Evaluation Committee, faced with the applicant's ambiguous tender, had a choice between two courses of action, either of which would have produced the legal certainty referred to at paragraph 34 above, namely to reject the tender outright or to seek clarification from the applicant. Given the likelihood, noted at paragraph 41 above, that the tender was indeed intended to remain valid for 90 days from11 June 2002 until9 September 2002 as required by section 8.1 of the Instructions to Tenderers and the fact that the applicant would have been obliged to provide within 24 hours any clarification sought so that the tender procedure as a whole would have suffered only minimal disruption and delay, the Court holds that the Evaluation Committee's decision to reject the tender without seeking clarification of its intended period of validity was clearly disproportionate and thus validated by a manifest error of assessment.”
“54. It should also be noted that Article 148(3) of the Implementing Regulation empowers the institutions to contact tenderers in the event that some clarification is required in connection with a tender, or if clerical errors contained in the tender must be corrected. It follows that that provision cannot be interpreted as imposing, in the exceptional, limited circumstances which it identifies, a duty on the institutions to contact tenderers (see, by analogy,Case T-19/95 Adia Interim v Commission[1996] ECR II-321 , paragraphs 43 and 44). 55. It can be otherwise only if, by virtue of the general principles of law, that power has evolved into an obligation on the part of the Commission to contact a tenderer (see, to that effect and by analogy, Adia interim v Commission, paragraph 54 above, paragraph 45). 56. That is the position, inter alia, where a tender has been drafted in ambiguous terms and the circumstances of the case, of which the Commission is aware, suggest that the ambiguity probably has a simple explanation and is capable of being easily resolved. In principle, it would be contrary to the requirements of sound administration for the Commission to reject the tender in such circumstances without exercising its power to seek clarification. It would be contrary to the principle of equal treatment to accept that, in such circumstances, the Commission enjoys an unfettered discretion (see, to that effect,Case T-211/02 Tideland Signal v Commission[2002] ECR II-3781 , paragraphs 37 and 38). 57. In addition, the principle of proportionality requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued, it being understood that, where there is a choice between several appropriate measures, recourse must be had to the least onerous and that the disadvantages caused must not be disproportionate to the aims pursued (Case C-157/96 National Farmers' Union and Others[1998] ECR I-2211 , paragraph 60). That principle requires that, when the contracting authority is faced with an ambiguous tender and a request for clarification of the terms of the tender would be capable of ensuring legal certainty in the same way as the immediate rejection of that tender, the contracting authority must seek clarification from the tenderer concerned rather than opt purely and simply to reject the tender (see, to that effect, Tideland Signal v Commission, paragraph 56 above, paragraph 43). 58. However, it is also essential, in the interests of legal certainty, that the Commission be able to ascertain precisely what a tender submitted in the course of a procurement procedure means and, in particular, to determine whether the tender complies with the conditions set out in the contract documents. Thus, where a tender is ambiguous and the Commission is not in a position to establish, quickly and efficiently, what it actually means, that institution has no choice but to reject the tender (Tideland Signal v Commission, paragraph 56 above, paragraph 34). … 74. It follows that the Commission was right to find that the omission of a price for Item E 9.26 in the cost estimation summary accompanying Company C's tender constituted a simple clerical error in that tender or, at the very least, an ambiguity having a simple explanation and capable of being easily resolved. In the light of the points raised in paragraphs 68 to 73 above, the obvious conclusion is that the missing price for Item E 9.26 of the cost estimation summary for Company C's tender cannot be different from the price bid by that undertaking for Item E 9.13 (EUR 903.69) and that it was a mere oversight that Company C did not state that price for Item E 9.26.”
“40. None the less, Article 2 of that directive does not preclude, in particular, the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender. Nor does that article preclude a provision of national legislation such as Article 42(2) of Law No 25/2006, according to which, in essence, the contracting authority may ask tenderers in writing to clarify their tender without, however, requesting or accepting any amendment to the tender. 41. In the exercise of the discretion thus enjoyed by the contracting authority, that authority must treat the various tenderers equally and fairly, in such a way that a request for clarification does not appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome. 42. In order to provide a useful answer to the national court, it must be added that a request for clarification of a tender may be made only after the contracting authority has looked at all the tenders (see, to that effect, Lombardini and Mantovani, paragraphs 51 and 53). 43. Furthermore, that request must be sent in an equivalent manner to all undertakings which are in the same situation, unless there is an objectively verifiable ground capable of justifying different treatment of the tenderers in that regard, in particular where the tender must, in any event, in the light of other factors, be rejected. 44. In addition, that request must relate to all sections of the tender which are imprecise or which do not meet the technical requirements of the tender specifications, without the contracting authority being entitled to reject a tender because of the lack of clarity of a part thereof which was not covered in that request. ”
“36. In accordance with the case-law referred to in paragraph 29 above, a request sent by the contracting authority to a tenderer to supply the declarations and documents required cannot, in principle, have any other aim than the clarification of the tender or the correction of an obvious error vitiating the tender. It cannot, therefore, permit a tenderer generally to supply declarations and documents which were required to be sent in accordance with the tender specification and which were not sent within the time limit for tenders to be submitted. Nor can it, in accordance with the case-law referred to in paragraph 31 above, result in the presentation by a tenderer of documents containing corrections where in reality they constitute a new tender. 37. In any event, the obligation which a contracting authority may have under national law, to invite tenderers to submit the declarations and documents required which they have not sent within the time limit given for the submission of offers, or to correct those declarations and documents in the event of errors, cannot be permitted except in so far as the additions or corrections made to the initial tender do not result in a substantial amendment of that tender. It is apparent from paragraph 40 of the judgment of29 March 2012 , SAG ELV Slovensko and Others (C-599/10, EU:C:2012:191) that the initial tender cannot be amended to correct obvious clerical errors other than exceptionally and where that amendment does not result, in reality, in the proposal of a new tender. 38. It is for the referring court to determine whether, in the circumstances of the main proceedings, the substitution made by Archus and Gama remained within the limits of the correction of an obvious error vitiating its tender. 39. Consequently, the answer to the first question referred is that the principle of equal treatment of economic operators set out in Article 10 of Directive 2004/17 must be interpreted as precluding, in a public procurement procedure, the contracting authority from inviting a tenderer to submit declarations or documents whose communication was required by the tender specification and which have not been submitted within the time limit given for the submission of tenders. On the other hand, that article does not preclude the contracting authority from inviting a tenderer to clarify a tender or to correct an obvious clerical error in that tender, on condition, however, that such an invitation is sent to all tenderers in the same situation, that all tenderers are treated equally and fairly and that that clarification or correction may not be equated with the submission of a new tender, which is for the referring court to determine.”
“[62]. Tideland requires the court to have regard to (a) the terms of a tender itself, and (b) the surrounding circumstances known to the client, (c) the client has to be satisfied that there is an "ambiguity", (d) the ambiguity probably has to have a simple explanation, and (e) the ambiguity is capable of being easily resolved. However, whilst on one view that might be interpreted as giving a court a wide power to require the client to give an unsuccessful tenderer a further opportunity to mend its hand, the circumstances in Tideland were exceptional, and it must be doubted whether the ECJ intended this to be interpreted in as generous a fashion as the trial judge's decision necessarily involves. Were the Department to provide an opportunity to a tenderer to remedy insufficient evidence by providing additional information, where the information would amount to a new tender that opportunity offends against the principle in SAG ELV.”
“26. Although paragraph 11.8 of the defendant's IFA gave it the right to seek additional information/clarification, I conclude that Tideland cannot assist the claimant in the present because:- i) There was no ambiguity in the bid, simply an uncompleted section of the form. Although some parts of the data required to score points might have been culled from information provided elsewhere in the bid, not all of the information that the claimant needed to supply to gain 51 points could have been so derived. The LSC could have identified that the claimant's firm was a qualified solicitor's practice based at an address in Bristol, but other information it had supplied elsewhere was subtly distinct from the questions asked in the selection criteria part of the form. The provision of information relevant to the selection criteria and the non-completion of that part of the application form, did not constitute an ambiguity that the defendant was bound to inquire into. ii) The exercise of the power of inquiry did not arise in circumstances where the imprecision of the tender terms or the defendant's subsequent conduct required it to exercise the power. The defendant had not caused the claimant's failure to provide the relevant material. iii) An overbroad exercise of the power to seek clarification would be contrary to the principle of equality and fair treatment of all tenderers. The CFI acknowledges this limit at [38] in Tideland and a similar emphasis has been attached to this principle in the decision of David Richards J in Leadbitter v Devon County Council[2009] EWHC 930 (Ch) at [63] to [68], approved by the Court of Appeal in Azam v Legal Services Commission[2010] EWCA Civ. 1194 . iv) It would be unfair to rival tenderers for the defendant either to have allowed the claimant to amend its application by completing it, or to fill in the selection criteria on behalf of the claimant from information that might have been available to it extraneously. Paragraph 11.6 of the IFA makes clear it is the responsibility of applicants to make sure all tenders are fully and accurately completed and there is no obligation on the defendant to obtain missing information or documents. Paragraph 11.7 explains that information already provided to the LSC in a previous contract could not be used to populate the PQQ and ITT "to ensure that we can assess each tender is affair, like for like and reasonable manner". Paragraph 11.23 indicates that applicants must not amend or alter any document comprising part of their tender after the closing time and date. All tenderers would expect those rules to be consistently applied.” i) There was no ambiguity in the bid, simply an uncompleted section of the form. Although some parts of the data required to score points might have been culled from information provided elsewhere in the bid, not all of the information that the claimant needed to supply to gain 51 points could have been so derived. The LSC could have identified that the claimant's firm was a qualified solicitor's practice based at an address in Bristol, but other information it had supplied elsewhere was subtly distinct from the questions asked in the selection criteria part of the form. The provision of information relevant to the selection criteria and the non-completion of that part of the application form, did not constitute an ambiguity that the defendant was bound to inquire into. ii) The exercise of the power of inquiry did not arise in circumstances where the imprecision of the tender terms or the defendant's subsequent conduct required it to exercise the power. The defendant had not caused the claimant's failure to provide the relevant material. iii) An overbroad exercise of the power to seek clarification would be contrary to the principle of equality and fair treatment of all tenderers. The CFI acknowledges this limit at [38] in Tideland and a similar emphasis has been attached to this principle in the decision of David Richards J in Leadbitter v Devon County Council[2009] EWHC 930 (Ch) at [63] to [68], approved by the Court of Appeal in Azam v Legal Services Commission[2010] EWCA Civ. 1194 . iv) It would be unfair to rival tenderers for the defendant either to have allowed the claimant to amend its application by completing it, or to fill in the selection criteria on behalf of the claimant from information that might have been available to it extraneously. Paragraph 11.6 of the IFA makes clear it is the responsibility of applicants to make sure all tenders are fully and accurately completed and there is no obligation on the defendant to obtain missing information or documents. Paragraph 11.7 explains that information already provided to the LSC in a previous contract could not be used to populate the PQQ and ITT "to ensure that we can assess each tender is affair, like for like and reasonable manner". Paragraph 11.23 indicates that applicants must not amend or alter any document comprising part of their tender after the closing time and date. All tenderers would expect those rules to be consistently applied.”
“30. In my judgment, this is the answer to the claimant's case that there was duty on the defendant to assist them make good the defects in their application. Viewed entirely from the point of view of a public law duty to act fairly, it may well be that the exercise of a discretion to grant a benefit should be based on all matters that could or should be known to the authority, and that fairness might well include a reasonable opportunity to correct obvious errors without changing the fundamental nature of the bid submitted. It is after all in the public interest that a well-qualified and experienced provider of legal services in the field of immigration should be permitted to continue in business. However, any such duty is severely circumscribed where there is a competitive tender and an over-riding duty to treat all tenderers equally. Here for reasons that were not the responsibility of the defendant, the claimant had failed to supply the information that would have lead them to being ranked in priority where there was competition for the award of NMS. Any general duty to give an applicant an opportunity to correct errors in the absence of fault by the defendant, yields to the duty to apply the rules of the competition consistently and fairly between all applicants, and not afford an individual applicant an opportunity to amend the bid and improve its prospects of success in the competition after the submission date had passed.”
“33. It is in my judgment no answer to say that this will be avoided by limiting the required intervention to cases where the error is "objectively verifiable". If any disappointed tenderer can invoke this process (whether through an appeal or otherwise) there is a real risk that a change in the bid might occur and either way, much more investigation will take place than otherwise. All of this is illustrated by the present case. It is said that the error is "objectively verified" because in fact Harrow did offer drop-in centres before, but the actual question sought an expression of intent: "would the tenderer commit to offering it?" It is not necessarily an answer to point to prior experience, even though the mistake is accepted as having been made in this case. And suppose the Claimant was a tenderer who had not done drop-in sessions before, but who claimed that it had answered "No" instead of "Yes". How is this failure to express the correct intent to be judged? If the critical point was prior experience of drop-in work that approach would arguably discriminate against new tenderers.”
“In my judgment, in order to succeed on this issue, the Appellant must first point to one or more instances in which an applicant whose application was as fundamentally flawed as were hers was permitted to change its application or applications and whose application or applications was or were then accepted as compliant with the tender rules. It is only if the Appellant can show that there were such instances that the question can arise whether the Commission acted in breach of its duty to treat applicants equally and consistently when it rejected the Appellant's applications.”
“59. In my judgment, however, the LSC's decision to reject AAR's bid because of the submission of a blank TIF was not disproportionate : a) this was a non-responsive tender by AAR; b) the IFA made it abundantly clear completion of the TIF was mandatory (for example in section 4 and paragraphs 9.3, 9.4, 9.16 and 9.37) and that it was AAR's responsibility to complete the tender fully and accurately (for example in paragraph 11.11) and that tenderers could not amend or alter any part after the closing deadline (in paragraph 9.56); c) the TIF was of fundamental importance – it was the heart of the bid, setting out amongst other things the number of NMS sought, in what area and using what staff the services were to be provided; d) even if there were other necessary documents, including the PQQ, the TIF was singled out in the IFA as being the only "mandatory form" that had to be completed and submitted (see paragraph 9.4); e) to have allowed submission of a completed form would have been effectively to allow submission of a new bid. This was not a situation of clarification of ambiguity or an obvious error arising out of information provided. The TIF had been submitted completely blank; f) moreover that new bid would have improved AAR's position and disadvantaged that of others (by reducing the pool of NMS available to other bidders); g) contrary to AAR's contention, the necessary information could not have been obtained (reasonably or at all) from other material submitted by AAR, specifically as to the number of NMS being bid for and also the address(es) from which the legal services were to be provided. As to the size of the bid, the LSC had no knowledge. As to address, whilst the LSC could have identified the address of AAR, it could not have identified whether or not any other addresses might be used. And here Mr Radnajarah did indeed wish to practise from another address, namely his home in London. Moreover, to the extent that other information was available from other documents, such documents were non-voluntary. There is at least a question mark over whether or not information from such documents could properly have been used (see paragraph 36 of R (on the application of Hossacks) v LSC[2011] EWCA Civ 788 ); h) following on from g), it was not clear that remedy would be "quick and easy". The LSC did not know if AAR had in fact completed the TIF and just failed to submit it, or whether the TIF had been completely overlooked. Before me, Mr Nadarajah could not say whether the completed TIF put in evidence had been completed before or after submission of his bid; i) the mistake could not be attributed to any fault on the part of the LSC (or indeed to any outside factor). The fact that there may have been only limited fault on the part of AAR is irrelevant – see paragraph 40 of Ministeriet for Forskning, Innovation og iderergaende Uddannelser (supra); j) to have allowed further submission would have jeopardised implementation and increased the administrative burden in a high volume process, as well as give rise to the risk of abuse; k) the potentially "harsh economic consequences" for AAR (to adopt the words of Richards J in Leadbitter (supra)) should not induce the court to accommodate a failure by AAR to comply with an obviously mandatory requirement of the bid.” a) this was a non-responsive tender by AAR; b) the IFA made it abundantly clear completion of the TIF was mandatory (for example in section 4 and paragraphs 9.3, 9.4, 9.16 and 9.37) and that it was AAR's responsibility to complete the tender fully and accurately (for example in paragraph 11.11) and that tenderers could not amend or alter any part after the closing deadline (in paragraph 9.56); c) the TIF was of fundamental importance – it was the heart of the bid, setting out amongst other things the number of NMS sought, in what area and using what staff the services were to be provided; d) even if there were other necessary documents, including the PQQ, the TIF was singled out in the IFA as being the only "mandatory form" that had to be completed and submitted (see paragraph 9.4); e) to have allowed submission of a completed form would have been effectively to allow submission of a new bid. This was not a situation of clarification of ambiguity or an obvious error arising out of information provided. The TIF had been submitted completely blank; f) moreover that new bid would have improved AAR's position and disadvantaged that of others (by reducing the pool of NMS available to other bidders); g) contrary to AAR's contention, the necessary information could not have been obtained (reasonably or at all) from other material submitted by AAR, specifically as to the number of NMS being bid for and also the address(es) from which the legal services were to be provided. As to the size of the bid, the LSC had no knowledge. As to address, whilst the LSC could have identified the address of AAR, it could not have identified whether or not any other addresses might be used. And here Mr Radnajarah did indeed wish to practise from another address, namely his home in London. Moreover, to the extent that other information was available from other documents, such documents were non-voluntary. There is at least a question mark over whether or not information from such documents could properly have been used (see paragraph 36 of R (on the application of Hossacks) v LSC[2011] EWCA Civ 788 ); h) following on from g), it was not clear that remedy would be "quick and easy". The LSC did not know if AAR had in fact completed the TIF and just failed to submit it, or whether the TIF had been completely overlooked. Before me, Mr Nadarajah could not say whether the completed TIF put in evidence had been completed before or after submission of his bid; i) the mistake could not be attributed to any fault on the part of the LSC (or indeed to any outside factor). The fact that there may have been only limited fault on the part of AAR is irrelevant – see paragraph 40 of Ministeriet for Forskning, Innovation og iderergaende Uddannelser (supra); j) to have allowed further submission would have jeopardised implementation and increased the administrative burden in a high volume process, as well as give rise to the risk of abuse; k) the potentially "harsh economic consequences" for AAR (to adopt the words of Richards J in Leadbitter (supra)) should not induce the court to accommodate a failure by AAR to comply with an obviously mandatory requirement of the bid.”
“● You do not need to have employed all Caseworkers and Supervisors by the date you submit your response to the ITT but you must have recruited all staff 8 weeks before the contract start date.”
“9.11. Answers to these questions will be assessed on a pass/fail basis. If an Applicant Organisation fails any question, we will reject their application. 9.12. The requirement to have the required experience, and not to have any mandatory grounds for rejection, are absolute and we will reject any application that does not meet our requirements. Other questions provide an opportunity to set out exceptional circumstances where an Applicant Organisation considers that they cannot meet the requirements but that exceptional circumstances apply which mean that they can meet our required standard even though they cannot give the appropriate answer to our question. For example, a new organisation would not be able to give confirmation that it had professional indemnity insurance in place, but could explain that this was the reason, and we would then decide that in these circumstances it met our overall requirement to have appropriate workplace insurance. 9.13. Where exceptional circumstances are given in a PQQ response, we will undertake an assessment of these to establish whether we would be willing to contract with the Applicant Organisation. 9.14 The PQQ also asks for information about financial sustainability. This information is not assessed, although we may use the financial sustainability information to inform future contract management. You should complete and attach the relevant Applicant Information Form (Private Sector or Not for Profit as appropriate).”
“9.28 All the questions in this section require an answer of Yes or No. 9.29 One of the Essential Criteria relates to an Applicant Organisation’s Immigration Supervisors. There is a facility in the right hand side of the screen (Buyer Attachments) to download the Immigration Supervisor Self Declaration Form. 9.30 This form should be downloaded and completed with details of each Immigration Supervisor who is currently in post at the Office(s) that an Applicant • is tendering to deliver services from as part of their tender. It should then be uploaded with the response. . 9.31 If an Applicant Organisation does not currently have a Supervisor in post then they must confirm and provide us with an Immigration Supervisor Self Declaration Form once this individual is recruited and in any event at least 8 weeks before the contract start date.”
“9.34 The Selection Criteria are set out in detail at the top of the page. The options for each Selection Criterion are then summarised and presented in a series of drop down fields against each Access Point. Applicant Organisations should select the appropriate options listed alongside the Access Point in which they want to bid. All fields should be completed (including the number of Matter Starts they are bidding for and the Office post code) for each of the Office(s) (Permanent or Part Time Presence) from which an Applicant Organisation wishes to deliver Immigration Services, based on the services an organisation intends to deliver from that Office – the Individual Bid.”
“7.32. Each ITT will set out the Selection Criteria that will be applied, these will include the ability (from1 October 2010 ) to offer: • The best access to an Authorised Litigator • Drop-in Service Sessions V • The best access to an Immigration Supervisor • A Level 3 accredited Caseworker – • A Permanent Presence (non-London areas only) 7.33. In addition, we will prefer Applicants that can demonstrate to us a higher level of confidence of their ability to deliver Immigration Services from 1 V October 2010 based on: • Experience of operating services in the geographical area tendered for • Experience of delivering legal services to clients V • Having a lower percentage of Caseworkers to recruit todeliver the services tendered for” • The best access to an Authorised Litigator • Drop-in Service Sessions V • The best access to an Immigration Supervisor • A Level 3 accredited Caseworker – • A Permanent Presence (non-London areas only) • Experience of operating services in the geographical area tendered for • Experience of delivering legal services to clients V • Having a lower percentage of Caseworkers to recruit todeliver the services tendered for”
“Selection Criteria 10.9 Selection Criteria will only be applied when the total volume of Matter Starts tendered for in an Access Point by those passing the Essential Criteria is greater than the Matter Starts available in an Access Point. 10.10 If we are not able to cater for all these Applicant Organisations’ Individual Bids for Matter Starts, the Selection Criteria relevant to the ITT will be applied. 10.11 Selection Criteria will be considered against each Individual Bid at Access Point level. This means that Individual Bids in an Access Point from Offices from the same organisation will be considered separately and are in competition with each other. For the avoidance of doubt, Individual scores from individual Offices within the same organisation will not be added together or aggregated 10.12 Set out in Annex B is an outline of the Selection Criteria and how it will be scored. Each answer to a question is allocated a certain number of points. A higher number of points will be awarded to those Individual Bids that demonstrate a better fit with our requirements. 10.13 We will total up the points awarded for each Individual Bid. Individual Bids will then be ranked against each other. The higher the number of total points awarded, the higher the ranking. 10.14 Once we have ranked all Individual Bids we will first award Matter Starts to the Individual Bid(s) ranked the highest and continue down the rankings until all available Matter Starts at the Access Point level have been allocated.”
“11.6. It is the responsibility of Applicant Organisations to make sure that their tenders are fully and accurately completed and accompanied by the appropriate documents. We are under no obligation to contact Applicant Organisations to clarify their tenders or to obtain missing information or documents, and tenders which are incomplete may not be considered. It is Applicant Organisations’ responsibility to obtain at their own expense all additional information necessary for the preparation of their tender. 11.7. Applicant Organisations are required to reply to all the questions on the PQQ and ITT, even if you have previously provided this information or if you think we are already aware of it (e.g. if you hold an existing contract with us). This is to ensure that we can assess each tender in a fair, like-for-like and reasonable manner. 11.8. We may request Applicant Organisations to give additional information/clarification at any time during the tender process. Applicant Organisations should be prepared to provide additional information and/or clarify any aspect of their tender with us. We reserve the right to validate any part of your tender and information subsequently given to us. … 11.23. Applicant Organisations must not amend or alter any document comprising part of their tender after the closing time and date set out in paragraph 11.2. … 11.30. Without prejudice to any warranties given, the rules of the tender process (including application and selection rules) contained in this IFA are not legally binding and no contract is formed between the Applicant Organisation and the LSC. However, the relevant parts of your tender will form part of any contract subsequently awarded and under clause 18.1 (b) of the Contract Standard Terms providers warrant the accuracy of information in their tender. 11.31. If an Applicant Organisation changes its status or any material element of its tender including management, proposed sub-contractors or Key Personnel between submitting its tender and being awarded a contract, we must be informed of this as soon as possible in writing. We reserve the right (depending on the nature and effect of the change in status) to revoke any contract award made and may request the new Applicant Organisation (post-change) to submit a fresh tender.”
“Preference will be given to Applicant Organisations who currently employ at least one Caseworker who is accredited to IAAS Level 3 (advanced Caseworker) or has received acknowledgement from the Law Society of receipt of an application to become accredited at this level Marked out of 5 Points will be awarded to an Individual Bid as follows: - The Applicant Organisation currently employs a Caseworker who is accredited to IAAS Level 3 (5 points) - The Applicant Organisation currently employs a Caseworker who has received acknowledgement from the Law Society of receipt of an application to become accredited at IAAS Level 3 (1 point) - The Applicant Organisations does not employ an IAAS Level 3 accredited caseworker (0 points)”
“Preference will be given to Applicant Organisations that will commit to deliver at least one regular and advertised Drop-in Service Session per week that is available to Immigration clients from the Office related to the Individual Bid Marked out of 2 - Able to deliver at least one Drop-in Service Session per week from the Office related to the Individual Bid (2 points) - Unable to deliver at least one Drop-in Service Session per week from the Office related to the Individual Bid (0 points)”
“Preference will be given to those Applicant Organisations who employ an Authorised Litigator based and regularly working from their Office in the Access Point for a greater number of days per week Marked out of 5 Points will be awarded to an Individual Bid as follows: - The Applicant Organisation will employ an Authorised Litigator based and regularly working from the Office in the Access Point for at least 3 days per week (5 points) - The Applicant Organisation will employ an Authorised Litigator based and regularly working from the Office in the Access Point between 1-2 days per week (3 points) - The Applicant Organisation will employ an Authorised Litigator based and regularly working from the Office in the Access Point less than 1 day per week (1 point)”
“We believe computer malfunction or technical glitch on the part of the LSC was responsible for the decision not to award at least 33 points and a contract to Hersi & Co solicitors.”
“Decision: Having reviewed the original tender response I am satisfied that the score of 18 was correct based on the information submitted by the Applicant. I am satisfied that the Information for Applicants (IFA) comprehensively detailed the actions required for an Applicant Organisation to submit its tender response. I am also satisfied that the consequences of failure to complete a tender response accurately are equally clear. The purpose of the Terms and Conditions of Tender is to ensure that Applicant Organisations are dealt with consistently and fairly. The LSC is bound to comply with thePublic Procurement Regulations 2006 which also require the LSC to treat tenderers fairly and consistently. As indicated above, I am satisfied that the Applicant was awarded the correct score for this criteria based on its tender response. The Applicant, in the letter of appeal, has now stated that there was an error in its response to Selection Criteria questions caused by a computer malfunction or technical glitch on the part of the LSC. The only technical issues relating to the TIF forms related solely to Applicant Organisations’ ability to complete Tender Information Forms (TIFs) and not to the LSC’s ability to read the TIFs submitted. This means that the LSC was able to read all the information submitted by the Applicant with its tender on16 January 2010 and I have seen a copy of the TIF submitted as part of that tenderwhich does not include the additional information referred to by the Applicant in its appeal. I regard the ground on which the Applicant’s appeal is based as an attempt to amend its tender. I do not believe that it would be appropriate to allow an appeal which could have that effect. I consider that the tender rules, as set out above, are very clear that it is the Applicant’s responsibility to submit an accurate tender. The LSC is entitled to assess tenders on the basis of the information directly provided by the Applicant and rely on it and is under no obligation to seek clarification.”
“36. When we came to assess the tenders, we found that a large number of applicants had made very fundamental and basic mistakes. For example, omitting to provide responses to selection criteria questions and not checking that before the tender deadline. This was not apparent to my team or the LSC until after the immigration tender closed and we began to assess the tenders submitted. Paragraph 10.1 of the immigration IFA explained that “Responses submitted by Applicant Organisations will not be opened until after the deadline has passed.”
“Although the staff details provided in the TIF indicated that Supervisors and Authorised Litigators would be delivering services from the Claimant’s office, it did not contain details of the time they would be was based and regularly working from that office. A number of organisations operate flexible working arrangements which might mean that staff work remotely and would not necessarily be present at he office five days per week. We therefore had no way of ascertaining from the TIF the correct position in relation to the Claimant.”
“An overbroad exercise of the power to seek clarification would be contrary to the principle of equality and fair treatment of all tenderers. It would be unfair to rival tenderers for the defendant either to have allowed the claimant to amend its application by completing it, or to fill in the selection criteria on behalf of the claimant from information that might have been available to it extraneously.”
“34. The claimant’s turnover for publically funded cases in the year und eth contract that ended in 2010 was£390,000 from 175 matter starts:£2,228.57 per matter start. 35. The 2010 contracts ran from November 2010 to April 2013, a period of just over two years and four months (2.3 years). 36. The claimant therefore estimates its lost income at£2,228.57 x 850 x 2.33 =£4,413,685.71 , at least 50% of which would have been profit.”
“Hersi & Co bid for 850 cases. It was expecting to earn about£2300.00 from each case. Therefore, the loss to Hersi & Co is approximately£1.95 a year. For a contract duration of 2.33 years that would be£4.5 million . This is to be reduced by the fact that not all of it would have been profit. And further to be reduced by the fact that not every firm got what it bid for.”