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The New Post Tender Paradigm

 A new paradigm - the legal world after the Legal Services Commission Civil Tender

The LSC has just issued the results of its tender.

Many Family Law firms that have been providing advice and representation over many years have failed to obtain a contract.

From the approaches we have received for help, across England and Wales, firms that specialise in Family Public Law seem to be a group that has been significantly affected by the tender and particularly the supervisor selection criterion for private family law. What effect this has on the Courts Service and hearing schedules remains to be seen.

After several years of the LSC threatening to reduce the number of suppliers and "shift volumes" of work, the cull has come, almost like a stealth fighter plane. The devastation of the attack is evident and lawyers wander around in a daze but they are not quite sure what happened.

The Carter plane flew over Crime but in the end no bombs were dropped and not a lot changed. Civil Lawyers relaxed and were lulled into a sense of false security. If nothing had happened to their local Crime firms post the crime tender then surely nothing would happen to them.

Terms like "partnership" and "relationship manager" sounded friendly enough so surely all would be well.

Then the bombs with delayed timers fell unheard from the skies.

They were:

1. A complex tendering portal laid out like a well-crafted minefield. It even asked the same question in 2 places to give firms two chances to get it wrong. And in case they were clever in avoiding 1 of the traps by answering it correctly then the LSC had a reserve weapon in the IFA to finish them off. Its blanket bomb paragraph 15.15 of the IFA:

 

"In the event of any conflict between the information, answers or documents submitted as part of a tender, the conflict will be resolved by accepting the information, answer or document least favourable to the Applicant Organisation or Consortium."

 

2. "Advanced Member" of the Law Society's accreditation scheme or a Resolution Accredited Specialist with a Domestic Abuse emphasis in both cases. This bomb killed off more family firms than any other in my view.

The number of family lawyers with this now, very valuable, qualification and their distribution across firms and geography must surely have been known or knowable by the LSC prior to the launch of the 2010 civil tender with the inclusion of this criterion.

If so, then the number of firms, especially public law firms, which would be culled as a result of the presence of this criterion, must have been known or knowable by this public body.

If so, then surely the scale of the casualty figures should have been taken into account in the usual post project IMPACT ANALYSIS that one carries out before launching a project of this scale.

If it the risk analysis was done then the LSC must have been content to accept the consequences of such a large scale cull to the supplier base.

As the Family lawyers recover from the shock and dust themselves down, they are putting what little energy and enthusiasm they have left into preparing their appeals.

Having worked in the legal sector all my working life, it must be the most depressing week I have ever experienced.

The New World

If these appeals are unsuccessful then the numbers of solicitor firms in cities, towns, valleys and villages across the country will be substantially reduced.

Access to legally aided service will inevitably be disrupted in the short term by such a major restructure to the supplier base, no doubt with severe pressures on the successful firms as they try to achieve their 85% NMS KPI after 14th October.

The public and the client will not in the short term know where to go for advice unless the LSC intends to actively market the new suppliers as the legal aid suppliers in the procurement area. The CLS directory will certainly be a lot thinner!

Family Law has always been a key component of non commercial law practices. One wonders how many firms will survive at all after the LSC attack.

As the dust of this battle settles I suspect no one knows its long term effects. However I suspect that everyone, including the LSC, knows they will be significant.

Some Questions

What of the MOJ and the new coalition government?  Will they stand on the sidelines and watch this happen?

Is this the last battle in the war to reduce the number of firms providing a legal aid service?   I suspect not!

What will happen to Crime next year? - Another critical strand of work in regional and smaller firms!

What will come from the MOJ's review of Legal Aid in the autumn?

Some final thoughts on a better alternative way forward

On its home page the LSC boasts the following:

"The Legal Services Commission (LSC) works in partnership with solicitors and not-for-profit organisations to help over 2 million people each year access legal advice, information and help."

"The Community Legal Service (CLS) is a network of LSC funded organisations and advice providers that fund, provide and promote civil legal aid services. "

After this tender round that already fragile "network" has been further damaged and many firms will be questioning whether there ever was a true "partnership".

So much more could be achieved through a true partnership where "relationship managers" are empowered to support firms through constructive conversations.

The model of transactional contract-based win-lose supply chain management has been found wanting and abandoned a long time ago in other industries and more progressive models now prevail.

It is time to review "total system cost" in the implementation of these changes. The "hidden waste" in time and costs at the courts, for example, of changes in legal aid scope and availability of a qualified advocate are never measured but cannot be insignificant.

If the coalition government are really serious about LEAN government they must learn from this tendering debacle where nobody wins - the LSC, the MOJ, the lawyers and certainly not the most vulnerable in society. Not even the successful firms in the bid round really "win" as the profitability of legal aid work is constantly eroded to unsustainable levels even at scale and constant compliance audits on technical input minutia disrupt efficient and effective delivery of legal services.

The current approach using the scatter gun approach of tendering with is sometimes seemingly random results is a long way from the post-modern progressive supply chain integration which is now prevalent in other industries.

The LSC and the MOJ must move from their current, very outdated, approach and they must do so now.

This alternative win-win model must be a better way forward for everyone and will truly provide cost savings across the entire system without damaging the access to justice infrastructure perhaps irretrievably.