Transforming legal aid: a guide to defence tendering

A guide to the Ministry of Justice’s consultation on criminal legal aid reform (Transforming Legal Aid: Delivering a more credible and efficient system) and price competitive tendering published earlier this week (HERE).

  • The guide has been written by David Gilmore, director of LegalVoice and director of DG Legal (www.dglegal.co.uk).
  • You can download the PDF HERE.
  • You can download a PDF of this guide which includes details as to scope (i.e., which work will be subject to competition and which work shall remain to be paid at administratively set rates). Download it HERE.

Introduction
Applications will be invited from a variety of types of business structures including individual firms, joint ventures, alternative business structures (ABS), partnerships etc. The Government expects that groups of small firms will join together to bid for a contract.

  • Most crime work to be price competitively tendered except Crown Court advocacy and VHCC cases
  • In order to guarantee savings, a price cap will be imposed. This will be 17.5% below the rates paid in 2012/13. This means that applicants can bid up to a maximum of 17.5% below the current rates.

Contract Length
Three years with an option to extend for a further two years. Six months no fault early termination clause to be revised to include a provision for compensation in certain circumstances.

Geographical Areas
Preference to use existing CJS areas with the exception of London, Warwickshire and Gloucestershire. Warwickshire will merge with West Mercia and Gloucestershire will merge with Avon & Somerset.

London to be broken into three procurement areas aligned with the area boundaries used by the CPS.

Exclusivity
Work will be exclusive to those who have been awarded contracts within an applicable CJS area. In other words, successful providers will not be able to accept work from outside their CJS area unless the case moves across a boundary (e.g. client transferred to a court in a different area).

Clients will not have choice of representation. They will be allocated a provider by the Legal Aid Agency (LAA).

Therefore, the concept of ‘own client’ is abolished unless the client is paying privately.

Number of contracts
The aim is to reduce the number of contracts from 1600 to around 400 providers.

Public Defender Service
PDS will be retained and will be guaranteed to receive a share – without having to enter into the competition.

Types of Provider
Individual organisations may apply (e.g. partnerships, ABS) or as a joint venture.             Providers could use agents but would be responsible for the work carried out. The LAA will only contract with single legal entities.

Contract Value
Applicants would bid for an equal share of their CJS area. For example, in Kent, there may be five contracts available, so a successful bidder would be awarded a contract to deliver a fifth of the available work in Kent.

There would be no minimum guaranteed volume, simply a guarantee to receive a specific fraction of the available work in the relevant procurement area.

Client Choice
Clients generally have no choice over who they are represented by.

Clients will be seen by the same provider throughout their case. There will be exceptions in cases of conflicts of interest, a breakdown in the professional relationship or in circumstances beyond the provider’s control e.g. closure.

Case Allocation
Cases will be allocated at the Investigations (Police Station) stage either on a case by case basis or by way of duty slots. The MoJ do not have a preference either way.

Request for Advice & Assistance outside of the Police Station would be made to the LAA directly who would allocate the matter to a provider.

Once a case has been allocated at the Investigations stage, the provider would be expected to manage the case throughout (where work is being paid by a competitive fee).

Remuneration
Providers will be paid a separate fixed fee for the following stages:

  • Police Station Attendance
  • Representation in the Magistrates
  • Court Crown Court (Up to 500 pages of prosecution evidence)
  • Crown Court (Over 500 pages of prosecution evidence)

Providers will submit a bid price for the first three stages and submit a proposed percentage reduction on the fourth stage (min 17.5%).

Each bid price must be at least 17.5% below the procurement area average claim. The price will be multiplied by the share of the total available work in the procurement area in order to work out the provider’s block payment each year.

Additional work and payments may be granted if there was a significant increase in the number of arrests in the procurement area.

Because different providers would be paid according to the level of their bids, providers will be paid differently for doing the same types of work.

Providers will be provided with information about average claims in order to help them decide the bid price. How helpful this is given the introduction of a price cap remains to be seen.

Procurement Process
There will be three stages: a Pre-Qualification Questionnaire (PQQ) and a two stage Invitation to Tender (ITT).

The first section of the PQQ would be similar to previous procurement exercises where the applicant is asked a number of questions about their track record covering for instance fulfilment of tax obligations. The second section may score providers against a number of criteria including:

  • Experience of staff
  • Experience of the management team
  • Experience of having delivered comparable volumes

Those scoring a higher number of points (to be set) would proceed to the next stage, the ITT.

The ITT would evaluate quality, capacity and the price of an applicant’s tender.

Applicant’s delivery plans would set out how they intend to deliver the service.

The applicant would submit a price for a police station attendance, a price for providing magistrates’ court attendance, a price for delivering Crown Court litigator work (less than 500 pages) and a proposal to accept a specified percentage reduction on Crown Court work (more than 500 pages).

The LAA will develop its model although it intends to allocate the cheapest bid first, the second cheapest bid second and so on until it has a sufficient number of suppliers for each procurement area.

Timetable
Close of Consultation: 4 June 2013

Publish Results of Consultation: Autumn 2013

Tendering Process:

  • PQQ stage: Oct 2013 – Nov 2013
  • ITT stage: Feb 2014 – March 2014
  • Award Contracts: June 2014

Service Commences: Sept 2014

 

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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