Criminal Legal Aid - Home - The Law Society

28/07/2016

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Criminal Legal Aid The 2016 Tender Process

Richard Miller

What I will cover

• Overview

• Tender Process

• Key changes to contract terms

• Next steps

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Overview 1

• The contract will be for three years from 1st April 2017

– The LAA may extend the contract by up to two years

– You may terminate on three months’ notice

– The LAA may terminate on six months’ notice

• The second fee cut is currently scheduled to be

reinstated from 1st April 2017

• Discussions are continuing on the Crown Court

Graduated Fee Schemes

• Your bid must be as a single legal entity

• The tender is not competitive. If you meet the

standards and complete the application correctly, you

get a contract covering both duty and own client work

Overview 2

• Duty slot allocation will be based on headcount of duty

solicitors, and is based on police station areas as under

the current contracts

• There will be measures to tackle “ghost” duty solicitors

• The first rota will be for three months, subsequent

rotas for six months

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Overview 3

• This is your only chance to get onto duty schemes for

the life of this contract.

• There will be provisions to limit excessive expansion

• There will be a cap on the number of duty solicitors you

can have until January 2018

Tender Process

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Tender Process

• Timetable

• Outline of the process

• Organisation ITT

• Individual Bid ITTs

• Technical tender rules

• Verification

Tender process: timetable

• Tender opened: 21st July

• Last date for questions: Noon on 8th August

• Answers to questions published: w/c 22nd August

• Tender closes: Noon on 15th September

• Notification – mandatory fails: Early October

• Notification – discretionary fails: Mid October

• Notification – contract awards: November

• Verification to get slots on April rota: 12th December

• CRM12s: 23.59 on 13th January 2017

• Final deadline for verification: 28th February 2017

• Contract start date: 1st April 2017

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Tender Process: Outline 1

• The tender consists of an Organisation ITT and one or

more Individual Bid ITTs

• The LAA will not consider any information other than

what you include in the tender form

• If the Organisation ITT is incapable of assessment, your

whole bid will fall

• If an Individual Bid ITT is incapable of assessment, that

bid will fall

• If you submit multiple Individual Bids, you must be

capable of delivering them all

• If offered a contract, your choice will be to accept it in

full or reject it in full


• By four weeks before the contract start date, you must

meet the following contract requirements:

– Authorisation by relevant professional body

– SQM or Lexcel

– An office that meets the contract requirements

– At least one FTE Supervisor

– A ratio of no more than four staff per FTE Supervisor

• If your organisation has limited liability, you must

provide an indemnity before the contract start date

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• The process is being conducted on the Bravo

eTendering system again

• If you are already registered, you don’t need to

reregister

• All communications from the LAA will come through the

eTendering system message board

• You can amend and resubmit your bid at any time up to

the deadline

• You can check what has been received through the

system via the “My ITTs” screen

• Section 4 of the IFA contains a lot of technical

information about the system

Tender Process: Organisation ITT

• Section A: Organisation and contact details

• Section B: Grounds for mandatory exclusion

• Section C: Grounds for discretionary exclusion

• Section D: Declaration that you will meet the crime

contract requirements

• Section E: Declaration from COLP or HOLP

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Organisation ITT: the Grounds for

Mandatory Exclusion 1

• Three areas covered

– If the Applicant or any of its Key Personnel have been

convicted of any of a range of criminal offences

– If the Applicant or any of its key personnel have been

found in breach of tax and social security obligations

– If the Applicant has been convicted or penalised for a tax

offence for fraud or evasion or breach of anti-avoidance

provisions

Organisation ITT: the Grounds for

Mandatory Exclusion 2

• If you answer yes to any of these questions, you will be

excluded from the procurement process

• You can plead “exceptional circumstances” to the

latter two

• The LAA will consider the exceptional circumstances,

but their determination is final

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Organisation ITT: the discretionary

grounds for exclusion 1

• There are 16 questions in this section

• They cover both the Applicant and Key Personnel

• They relate to events over the past three years

• If you give an answer that amounts to a discretionary

fail, you must spell out the exceptional circumstances

you want the LAA to take into account

• If the LAA does not accept your exceptional

circumstances there is a right of appeal to the LAA’s

Legal Director



• Subjects covered by these questions include:

– Insolvency, IVAs and CVAs

– County Court judgments

– Professional misconduct or conditions on practising

certificates

– Anti-competitive agreements with other firms

– Deficiencies in the performance of other public contracts

with the LAA or other public bodies

– Compliance with equalities, environmental and health

and safety legislation

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• C.1 The Applicant or any of its Key Personnel has

violated applicable obligations referred to in regulation

56 (2) of the Public Contracts Regulations 2015 in the

fields of environmental, social and labour law

established by EU law, national law, collective

agreements or by the international environmental,

social and labour law provisions listed in Annex X to the

Public Contracts Directive as amended from time to

time;



• C.1 – a rough translation: Have you breached any

provisions that are legally applicable in England and

Wales, whether from domestic law, EU law or

international conventions, relating to protection of the

environment, trade unions, or the rights of employees?

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• C.4 The Applicant, any of its Key Personnel or any of its

former Key Personnel is guilty of grave professional

misconduct, which renders its integrity questionable or

has been referred to a disciplinary body [after]

allegations of professional misconduct have been made;

• C.12 Have any of the Applicant’s Key Personnel

(irrespective of which organisation they were working

for) received any conditions on their practising

certificates imposed by a regulatory body, Relevant

Professional Body or Complaints Body within the last

three years?



• C.8 The Applicant has had any contract with the LAA or

its predecessor body terminated in whole or in part

within the last five years (not restricted to crime

contracts), or is it currently in receipt of a notice to

terminate?

• C.9 Has the Applicant, or any of its Key Personnel

whilst Employed by a previous organisation, received

either:

– a) two consecutive Peer Review ratings of 4; or

– b) a Peer Review rating of 5,

in the Crime Category of Law following the outcome of

any appeal in the last 5 years?

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• C.13 In the last three years, has the Applicant or its

Key Personnel had a complaint upheld following an

investigation by the Employment Tribunal, an

Employment Appeal Tribunal, Equality and Human

Rights Commission or its predecessors (or a comparable

body in any jurisdiction other than the UK), on grounds

of alleged unlawful discrimination?



• The expansion assessment is included as part of the

discretionary grounds for exclusion

• You must specify in question C.16 if you are increasing

your number of duty solicitors by more than 50%

• There will be a cap on the number you can engage for

the first two rotas, until January 2018

• You will have to go through an assessment if

– You intend to engage 10 or more duty solicitors AND

EITHER

– you do not currently have duty solicitors OR

– This represents an increase of 50% or more on your

current number of duty solicitors

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• If this applies, you will need to send in

– Two years’ accounts

– Business plan

– Cashflow forecast

• The LAA will consider whether your expansion appears

to be realistic based on your accounts and plans

Organisation ITT: Financial

Assessment 1

• There will be a financial assessment if:

– You have not maintained payment of tax and social

security obligations following an IVA or CVA (C.2)

– You are expanding more than 50% and have more than 10

duty solicitors (C.16)

• The assessment will look at the following:

– Do you have sufficient funds to run?

– Is your forecasting based on realistic assumptions as to

when revenues will be received?

– Will you have sufficient income to meet liabilities?

– Are your reserves adequate?

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Organisation ITT: Financial

Assessment 2

• The assessment will rate a firm as Red or Green

• If you are being assessed under C.2, and are not rated

Green on all four criteria, your bid will be rejected

• If you are being assessed under C.16, and are not rated

Green on all four criteria, you will be prioritised for

Contract Management Activity

• If you need to provide financial information under C.2

but fail to do so, your bid will be rejected

• If you need to provide financial information under C.16

but fail to do so, your bid will be rated Red

Tender Process: Individual Bid ITT

• 12 areas, based on LAA offices

• If all your offices are within one area, you only need

submit one Individual Bid covering all those offices

• If your offices are in more than one area, you will need

to submit one Individual Bid for each area in which you

have offices

• A complete Individual Bid will require

– The Individual Bid form

– An Additional Office Information Form if relevant

– A Duty Information Form (“DIF”) covering all the offices

from which you intend to provide duty solicitor work

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Tender Process: Duty Information

Form – technical issues

• The DIF is an Excel spreadsheet

• It can be found in the “Buyers’ Attachments” section of

the Individual Bid ITTs

• You need to download it to your computer, complete

it, save it, and then upload it with your bid

• The form includes macros, which means that it will

work better on a desktop computer than a tablet or

mobile device

• If you want a non-macro version to complete on a

mobile device, you must request it through Bravo by 8th

August

Tender Process: Duty Information

Form – information to provide

• You will need to provide details of the offices from

which you intend to provide duty solicitor work

• This is your sole opportunity to join a scheme during

the life of this contract

• You can’t exceed the cap on the number of duty

solicitors for your organisation, but you can move duty

solicitors between rotas in July.

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Tender Process – technical rules

• 9.8 A Tender must be authorised by the Applicant’s

COLP or HOLP

• 9.24 The Applicant’s sole right of appeal is in relation

to the grounds for discretionary exclusion

• 9.36 Where a material change occurs to the Tender

information submitted by an Applicant, including issues

relating to any current contract the Applicant holds,

the Applicant must inform the LAA.

• 9.52 Applicants wishing to provide Contract Work

within Wales must comply with the Welsh Language Act

1993 and Welsh Language (Wales) Measure 2011

Tender Process: Verification 1

• The ITT includes provision for you to upload verification

of key matters with the tender

• Failure to provide the verification with your tender will

NOT be a tender fail

• If you complete verification by 12th December 2016,

you will be entitled to slots on the April rota

• If you complete verification for some offices only by

12th December 2016, you will be entitled to slots for

those offices only from April 2017

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Tender Process: Verification 2

• If you complete verification by 28th February 2017, you

will be entitled to slots on the July rota

• If you complete verification in March 2017, you will be

entitled to a contract, but to no duty slots for the life

of the contract

• If you fail to complete verification by the contract start

date, your contract offer will be withdrawn

Key changes to contract terms

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Key changes to contract terms

• Supervisor Qualification

• Office Requirements

• Office Moves

• Duty Solicitor Provisions

• IT Requirements

• Mandatory Electronic Working

• Instruction of Advocates

• “Embarrassment” clause

Key Changes to Contract Terms –

Supervisor Requirements

• The 3 separate routes to qualify as a supervisor have

been replaced by one

• You must:

– In the previous 12 months have undertaken a

minimum of six Police Station Advice and Assistance

cases, and;

– In the previous 12 months have undertaken a

minimum of:

• 20 magistrates’ court Representations and advocacy or:

• 10 magistrates’ court Representations and advocacy and

five Crown Court Representations and advocacy

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Office Requirements 1

• ALL your offices must have:

– constant right of access during business hours;

– open and accessible to clients and others during

normal business hours;

– permanent staffing by someone from your

organisation;

– facilities to interview clients and others in private;

– contain sufficient infrastructure to enable you to

deliver contract work;

– secure storage facilities if you store client files at

this location.


Office Requirements 2

• In shared and serviced offices, you must have a right of

access at all times during business hours and you must

be able to provide face to face services at that office

• Contact numbers and other means of communication

may be centralised.

• Hotels, residential properties and serviced office where

you do not have exclusive use of a designated space

that meets the requirements are specifically excluded

• Virtual offices are not permitted

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Office Moves

• Rules about office moves remain unchanged:

– You will still need to ask the LAA’s permission to relocate

your office.

– If permission to move your office is granted, you will still

not be entitled to slots on any duty rotas in the new area.

• If a court or police station custody area moves or

closes, the LAA can change the boundary rules


Duty Solicitor Provisions 1

• Attendance requirements to qualify as a duty solicitor:

– A minimum of 36 court hearings and Police Station

attendances in each rolling 12 month period to include:

• (i) a minimum of 12 magistrates’ court hearings;

• (ii) a minimum of 12 Police Station attendances and

• (iii) a further 12 hearings or attendances which may include

Crown Court hearings

– You must conduct at least three magistrates’ court or

Crown Court hearings and at least three Police Station

attendances in each rolling three month period.

– In each rolling 12 months period, you must undertake no

less than four police station duty solicitor attendances

allocated in your name

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• For a duty solicitor to qualify for slots for a particular

office, that duty solicitor must undertake a minimum of

14 hours’ Contract Work for you per week from that

office

• Contract work can be either duty or own client work

• Private work will not count towards this measure

• This provision will be measured on a rolling monthly

basis



• You may not submit a CRM12 form or seek to obtain

Duty Slots in respect of Duty Solicitors who:

– Will not be engaged or do not meet the

requirements

– Are not resident in England or Wales

– Receive payment for the use of their name to obtain

slots but who are not employed/engaged by you

– Are temporary staff covering maternity/sick leave

where you already have slots for the absent fee

earner

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Key Changes to Contract Terms – IT

Requirements 1

• You must have an IT System which enables you to

perform your obligations under this Contract

• Extensive minimum requirements spelled out

• You must have

– Case Management system

– Accounts system

– Practice Management system

– Electronic Diary

– Internet access

– Secure e-mail

Key Changes to Contract Terms – IT

Requirements 2

• Your secure e-mail must “be used as the address by

which the criminal justice agencies (including

prosecution and police) serve or make available

evidence and communicate electronically”

• Your system “must be capable of being used by you to

work electronically within the criminal justice system

and with other criminal justice agencies (including the

prosecution and police)”

• It must be “capable of being accessed and used by you

remotely (for example at courts and police stations)”

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Mandatory Electronic Working

• 4.8 All communications with the Director or us relating

to Contract Work must be made electronically unless

we have notified you that we are prepared to receive

communications on paper or otherwise.

• 4.9 Mandatory Electronic Working is in force under this

Contract and the ECrime System is our primary method

of communication with you for Contract Work. You will

submit associated evidence or requested

documentation to the Director and/or us in any manner

we may reasonably specify.


Instruction of Advocates

• Where you instruct Counsel or in-house advocate to

conduct Crown Court advocacy services, you must

consult the client and advise the client of the name,

status, experience and suitability of this Counsel or in-

house advocate.

• If the chosen Counsel or in-house advocate becomes

unavailable you must take all reasonable steps to

instruct another Counsel or in-house advocate of

equivalent standing and, so far as is practicable, advise

the Client of the merits and suitability of the proposed

replacement

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“Embarrassment” Clause

• “You shall ensure that neither you nor any of your

Affiliates embarrasses us or otherwise brings us into

disrepute by engaging in any act or omission which is

reasonably likely to diminish the trust that the public

places in us, regardless of whether or not such act or

omission is related to your obligations under this

Contract. Any operation of this Clause is subject to our

obligation to act as a responsible public body and any

sanction must be proportionate.”

Next Steps

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Next Steps

• Read the tender documentation today

• Identify what information you need, and think about

how to get it on time, particularly allowing for people

being away on holiday

• If you are unclear on what anything in the tender

means, submit a question

• Start drafting your bid now

• Read the Answers published by the LAA

• Get someone else to read over your bid

• Double check all your uploaded documents

• Submit the tender at least 24 hours before the deadline

Questions

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