1. Introduction
1.1 Who should read this practice note?
Solicitors and practice managers who deal with legal aid contracts for criminal work.
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1.2 What is the issue?
The current Unified Contract (Crime) has been extended to 13 July 2010. The new 2010 Standard Crime Contract will come into force on 14 July 2010. Every firm wishing to renew or apply for a legal aid contract for criminal work must now submit an online application, referred to as a tender.
This Practice Note aims to provide you with a summary of the main changes introduced in the Legal Aid Contracts for 2010, and the tendering process.
This information represents our best understanding of the position but you must read the tendering documentation very carefully, as some items may be dealt with differently, and some requirements may be added or removed.
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2. Changes to the timetable
The Ministry of Justice announced in December 2009 that the Best Value Tendering pilots will no longer be proceeding as announced.
There will now be a single application process for all applicants who wish to undertake criminal defence service work in any Criminal Justice System (CJS) area of England and Wales .
The timetable for the Invitations to Tender has also changed. The application process for the 2010 Standard Crime Contract applicable to all CJS areas will now open at 4pm on Monday 15 February 2010 , and close at 4pm on Friday 12 March.
Any firm that misses the deadline will not be able to conduct legally aided criminal defence work after July 2010, when current contracts expire.
The new contracts are due to last for 3 years from the 14 July 2010 and the LSC will have the right to extend it for up to 2 years. The LSC may terminate the contract for any reason on 6 months notice and providers may terminate for any reason on 3 month's notice.
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3. How the LSC will buy services
3.1 The tendering process
The LSC will publish the Invitations to Tender( ITT ) and the Information for Applicants (IFA) on the LSC website. You must submit a bid for a contract on the e-tendering portal by the 12 March deadline.
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3.2 How to apply
You must register on the e-tendering portal and then:
- Complete the Pre-Qualification Questionnaire (PQQ). This can be completed once but must be re-submitted with each Invitation to Tender.
- Complete and submit an Invitation to Tender ITT.
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3.3 Pre-Qualification Questionnaire (PQQ)
The PQQ relates to the organisation, not the work. There is a common form for all tenders, and one must be submitted with each tender.
The PQQ largely consist of a series of yes/no questions to enable you to confirm compliance with key legislation and aspects such as professional conduct.
It will cover the following areas:
- Rejection: Any mandatory grounds for rejection of the Applicant under regulation 23(1) of the Public Contracts Regulations 2006 (Applicants or Key Personnel convicted of conspiracy, bribery, fraud, money laundering)
- Experience: Requirement to have 1 year's managerial experience and 3 years' experience of delivering specialist legal advice.
- Complaints: Requirement to have a complaints process, and no history of complaints being upheld and sanctions applied by a regulatory/complaints body, or upheld professional negligence claims, in the last 3 years (in relation to publicly funded areas of law only).
- Insurance: Requirement to have appropriate professional indemnity, public liability and employers' liability insurance cover.
- Workplace legislation: Requirement to comply with workplace legislation (data protection, equalities and health and safety at work) by having appropriate policies and procedures and an acceptable history of discrimination claims in the last 3 years.
- Business conduct: An acceptable history of business conduct including interventions and adverse findings by regulatory bodies, bankruptcy/insolvency, terminations for fault of public sector contracts, criminal convictions and failures to repay money owing on public sector contracts.
- Liabilities: Confirmation that the Applicant Organisation has met its tax, VAT and NI liabilities.
- Standards: Confirmation that the Applicant Organisation will hold an appropriate quality standard (SQM or Lexcel).
The PQQ is available on the LSC website through the 'PQQs open to all suppliers' link on the e-tendering portal.
The deadline on the PQQ refers to the deadline for the Immigration tenders only. The deadline for other areas of law is the tender deadline. However, you should fill in the PQQ as early as possible to ensure you have gathered the requisite information.
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3.4 Invitation to Tender (ITT) and Information for Applicants (IFA)
The Invitation to Tender will appear in the Gazette and on the LSC website.
The ITT and IFA:
- Detail exactly what is being tendered
- Set out how to tender
- Confirm the requirement to use e-tendering
- Include formal tender rules
- Include the allocation criteria and appeals processes
- Set out a process for asking questions
The current version of the Immigration Tender is available at the LSC website.
You should read this to see how these documents are set out. Many of the rules are likely to be broadly the same for the criminal tender. Read the document thoroughly at least twice, and once you have completed your tender, read it again to ensure you have covered everything. Check through it as early as possible to ensure you have adequate time to ask any questions.
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3.5 Frequently asked questions (FAQ)
You are able to ask questions online. These will be answered in a public FAQ published on the criminal tender page of the LSC website. Keep reading the FAQ, and don't submit your bid until after the last update. The IFA sets out the rules for asking questions, namely through the e-tendering software, and gives the last date for questions and the date of when the final FAQ will be published.
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3.6 E-tendering
The tendering process will be run online at the e-tendering portal . Applications for new contracts will only be accepted through this online facility. You must have a PC with a minimum of Internet Explorer 6+ in order to use the portal. The following support is available:.
Training video: The LSC has developed an online video presentation that will take you through using the e-tendering portal step-by-step. View the video here.
Quick guides: These short documents include screen shots and brief descriptions of the most common technical processes you will need to register on the site and complete Pre Qualification Questionnaires (PQQ) and Invitations to Tender ( ITT ).
Telephone helpline: Bravo Solution, the service provider, provides a telephone support line -020 3349 6610
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3.7 Appeals
Appeals rules are in the IFA. Appeals are to the LSC's Legal Director under very strict deadlines. There is no other appeal route.
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4. The terms on which the LSC is buying
4.1 Contract Structure
The LSC has developed a single set of 'standard terms' across all areas of work including:
- Crime
- Very High Cost Cases (Crime), and
- Civil
There are separate category specifications.
Standard Terms apply to all contracts with the LSC across the board.The specification deals with crime/civil and subject-specific rules.
4.1.1 Order of precedence
Contract documents have the following order of precedence:
- Contract for signature
- Standard Terms
- Schedule
- Specification
Where there is any conflict between terms, this is the correct order of priority. A term in a lower precedence document can override a higher document, but will not do so unless this is expressly stated.
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4.2 Standard terms
The standard terms are available at the Legal Services website:
Download the Standard Terms (PDF 379KB)
Below are the main areas of change.
4.2.1 Communication Clause 2.10-2.12)
The LSC has included an obligation on providers to assist the promotion of legal aid through:
- notifying the LSC of any cases that may be of interest to the public or the media, subject to the client's consent,
- providing the LSC with case studies
- mentioning that the cases are funded by legal aid when dealing with the media.
4.2.2 New provisions relating to working with third parties (Clause 3)
Providers must undertake contract work themselves, subject to their right to use agents, counsel and experts. Any breach of this clause is a fundamental breach (Specification 3.1)
The LSC identifies 4 types of third parties:
- Counsel
- Agents
- Subcontractors
- Approved Third Parties (e.g. experts and interpreters)
The LSC may:
- specify qualifications that agents, third parties and independent advocates must possess
- prohibit you from instructing named individuals.
- specify the maximum payments/hourly rates for third parties.
You must ensure any agreement with subcontractors allows the LSC access to their premises for the purposes of audit
4.2.3 IT System (Clause 7.16)
This clause sets out minimum requirements for an IT system which include
- case management, conflict checking and time recording
- web access and email
These requirements are typically met by practice management systems.
4.2.4 Business continuity plan (Clause 7.20-7.21)
A Business Continuity Plan ( BCP ) works out how a practice will stay in business if something goes wrong, such as a fire or pandemic illness. The British Standard for Business Continuity Management (BCM), BS 25999, describes it as a management process that:
- identifies threats and impacts
- builds the capacity for an effective response
This Clause states that you must have a Plan and that you must review and test it annually.
The plan should include what you would do if:
- A key member of staff suddenly died
- There was a flood or fire at the office
- Your IT system suffered a terminal failure
The LSC can ask to see the plan at any time.
The Law Society's Practice Note on Business Continuity provides useful information on Business Continuity Management (BCM). The Department of Business Enterprise and Regulatory Reform also provides extensive guidelines to assist practices in implementing BCM.
4.2.5 Auditing Costs (Clause 9.8)
The LSC has introduced a new right to recoup auditing costs from providers who it discovers are:
- over claiming or misclaiming, and
- who decline to cooperate in establishing the full extent of the claiming problem and making proposals for repayment if appropriate, resulting in an extensive, costly audit of the rest of the firm's files.
4.2.6 Amendment Clause (Clause 13)
The LSC has limited rights to amend the contract. Reasons for amendment may include:
- For change of legislation
- To reflect case law
- To comply with tax or regulatory authority
- To deal with a change to the justice system including changes to court rules, tribunal jurisdiction, location of the Courts and police stations.
- As a result of a direction of the Lord Chancellor, which can cover:
- description of services to be covered under the CLS fund;
- priorities to be set; and
- the funding of otherwise excluded services
The LSC claims to be entitled to make "such amendments to the Contract as we reasonably consider necessary to take account of any such changes".
The LSC cannot make amendments that are "sufficiently material to constitute a new award of a contract for the purposes of the Public Contracts Regulations 2006". The rest of the clause is all subject to this provision.
4.2.7 Cost assessment (Clause 14.6-14.7)
Claims for costs should be submitted within 3 months of the matter or case or duty period ending (see: 2010 Standard Crime Contract – Specification: 8.2).
Claims must be submitted in accordance with the specific provisions applicable to each unit of work (set out in Part B of the 2010 Crime Contract Specification).
Standard Monthly Payments are triggered by submission of the appropriate contract Report Forms within 20 days of the end of the previous month (see: 2010 Standard Crime Contract – Specification: 5.22).
4.2.8 Publishing information (Clause 15.8)
The LSC reserves the right to publish a firm's information on the website including
- Contract decisions about the firm and its personnel
- Payments made
- Matters started
- Peer review results
4.2.9 Data protection (Clause 16)
The data protection obligations in Clause 16 largely mirror a data controller's statutory obligations under the Data Protection Act 1998 (the Act).
You must in any event comply with all obligations under the Act by appointing someone who will be responsible for compliance. This individual should familiarize themselves with the Act, guidance and relevant case law and keep abreast of changes. See The Law Society's practice note on data protection for further details.
You must also comply with the information security requirements of the Act along with the additional requirements of Clause 16. (See the Law Society's practice note on information security for information on compliance).
The contract distinguishes between ‘Shared Data' processed as a data controller and ‘LSC Data' and client data that may be processed as a data processor. ‘Data controller' and ‘data processor' and their respective obligations are defined in the Act.
The areas in which the contract goes beyond the requirements of the Act include:
- clause 16.7 in relation to not transferring LSC Data outside the EEA without the LSC's express prior written approval (the Act requires compliance with the eighth data protection principle);
- clause 16.9 in relation to the specific security measures that must be taken (implementing appropriate technical and organizational security measures is a feature of the Act); and
- the indemnity clauses.
4.2.10 Sanctions, termination and dispute resolution (Clauses 24-28)
There are no significant changes to the sanctions in the contract.
Termination of the contract by the LSC can happen at any time, without fault, on six months' notice. The default position is that you can do remainder work. The Remainder Work Protocol has been drafted into the contract. This confirms that unless the contract has been terminated for breach you can undertake remainder work
The LSC remains of the view that TUPE (26.13-26.20) will not apply on expiry of the contract. However, they have inserted specific steps that must be followed in the event that TUPE applies.
- the LSC may request employee information from the providers at the end of the 2010 contracts if they think TUPE applies ( so that they can give this to providers applying for the next contracts); and
- Providers will remain liable for any employment claims relating to their period of employment of any transferring employees.
The process for resolving disputes has been amended. The parties may use mediation or if this is not possible the issue will be decided through the courts within one year of a claim arising. Arbitration has been removed as an option (Clause 28).
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4.3 The Criminal Specification
4.3.1 The Main Changes
- Prison Law Funding – the proposed changes in this area were recently consulted on and are set out in section 12 of the Specification.These include the outcome of the Ministry of Justices consultation "Refocusing on Priority Cases".
- Crown CourtMeans Testing – prescribed proceedings in the Crown Court are subject to Crown Court means testing. Funding currently paid for under Advocacy Assistance will move under Representation Order from July 2010. The mechanism for payment and the costs limitation which presently applies to Advocacy Assistance will continue to apply to prescribed proceedings funded under a representation order in the Crown Court.
- Duty Solicitor Arrangements – These have been incorporated into the Specification. This moves responsibility for compliance from the individual to the organisation. The LSC has stated that a new set of arrangements to preserve Regional Duty Solicitor Committees will be produced in time for the start of this contract.
- Supervisors' Standards – These now form part of the contract and are in section 2 of the specification. The most significant changes are to prison law and duty solicitors.
- Key Performance Indicators – These are set out in Section 2 of the Specification. The LSC has decided NOT to adopt the new KPI to ensure providers accept 50% of police station back-up calls.
- Out-takes from the Standard Terms – now that the Standard Terms are common to both civil and criminal legally aided work, the crime-specific parts of the Unified Contract Standard Terms have moved over to the Specification.
4.3.2 Structure of the Specification
The LSC intends to produce a detailed Guidance to the Specification ("the Guidance Document") which is referred to in the Specification to be published on their website before the contract start date.
The Specification is divided into parts A and B
4.3.3 Part A
This focuses on the general rules you must comply with.
Section 1 - General provisions
There are new rules relating to Schedule arrangements and what you are able to undertake under the 2010 Standard Crime Contract.
Section 2 - Service Standards
This section deals with:
- Supervision standards
- Office requirements
- Referrals and signposting clients that you must comply with
KPIs, which were previously in Annex G to the Unified Contract Standard Terms are now included in this section.
Contractual position
As the KPIs are now included in the contract, breach of KPIs result in breach of the contract. Breach of KPIs is therefore subject to special procedural safeguards contained in Clause 11 of the Standard terms.
Sanctions for breach will not be imposed without discussions with your Relationship Manager and without the LSC considering whether an action plan for improvement would be a more appropriate way to deal with the problem.
In considering sanctions, the LSC will take into account the severity of the failure to meet the KPI, the number of previous failures to meet the KPI in question, any term of the specification in relation to the relevant KPI and/or how many other KPIs you have previously failed to meet.
Material or persistent failure will result in sanctions. A breach could be taken into account in future contract rounds
Section 3 - Funding Criteria
Most of this section is similar to the unified contract. However, some paragraphs have been moved from Part B of the Unified Contract Specification to this section. These relate to general qualifying criteria that need to be satisfied before you can carry out contract work
Section 4 - Carrying out Contract Work
Most of this section is similar to the unified contract. This section deals with:
- LSC general powers
- Devolved powers
- Electronic working
- Use of Agents, Counsel and Approved Third Parties
- Solicitors with higher court advocacy rights
- Applications
- Unique file numbers and filing requirements
- Boundaries between classes and units of work
- Matter or case ends
- Continuity of service
- Change of provider
- Misrepresentation by clients
Section 5 - Remuneration for Contract Work
There are no significant changes to this section. However, rules on setting, amending and reconciling Standard Monthly Payments have moved from the Standard Terms to this section. The LSC is developing a separate SMP protocol to be published at the Legal Services website
Section 6 - Duty Solicitor Scheme Rules
The Duty Solicitor Arrangements 2008 are now under this section. The responsibility for compliance now falls on the practice rather than the individual solicitor. The practice must apply to join the Duty Scheme. Me mbership of the Schemes is based solely on the postcode of the practice. The number of Duty Solicitors a practice employs will continue to determine how many Duty Slots are allocated to the Provider during a six-month rota.
Section 7 - Very High Cost Cases
This section sets out the rules you must follow in relation to cases that may become VHCCs. VHCC work is not within the scope of this contract. There is presently a consultation to amend the definition of VHCC cases to cover only Crown Court cases that last 60 days or more. The consultation outcome will not be published until the end of the tender process. Therefore, VHCC firms who wish to continue to carry out 40-60 day cases should apply for a Standard Crime Contract to ensure they can do so.
Section 8 - Claims, Costs Assessments and Reviews
There are no significant changes but Part C of the Unified Contract specification has been moved to this section and some of the previous guidance has been removed and placed in the "Guidance Document".
4.3.4 Part B
Section 9 - Criminal Investigations
Much of the guidance in this section has been removed and placed in the "Guidance Document".
Section 10 - Criminal Proceedings
This section includes:
- Virtual Courtwork
- Funding: From July 2010 prescribed proceedings in the Crown Court will be funded under a representation order granted either by the LSC or the magistrates' court and will no longer be funded under Advocacy Assistance in the Crown Court This applies to prescribed proceedings that started in the Crown Court (such as for Serious Crime Prevention Orders) and to appeals to the Crown Court for the magistrates' courts in respect of an order made in the prescribed proceedings (such as ASBOs).The payment provision will remain the same as currently exists for Advocacy Assistance, including an upper limit for costs which will apply to work done under a representation order in Prescribed Proceedings in the Crown Court.
- Representation: A new unit of Work is included which covers Crown Court Representation under the Representation Order.
Section 11 - Appeals and Reviews
There are no significant changes to this section, however, some guidance has been moved to the "Guidance Document".
Section 12 - Prison Law
Following recent consultations on prison law this section contains the following rules:
- Supervisor Standard - all providers will need to have a prison law supervisor who meets the specified standard.
- A revised and more stringent sufficient benefit test.
- Fixed fees for Advice and Assistance unless the 'escape limit' is reached
- Standard fees for Advocacy Assistance unless the 'escape limit' is reached.
- Limits on travel costs
- Prior authority is needed to commence all 'treatment' cases
Section 13 - AssociatedCLSwork
The Payment Annex lists all fees, excepting the following:
- Crown court work (specified in the civil Payment Annex)
- Associated civil work which is listed in the Civil Payment Annex
Download the Payment Annex (PDF 167 kb)
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5 Preparing for the tender
The following information on the services that the LSC intend to commission and the tender process is available on the LSC website:
You should look at all the information available, particularly that on the e-tendering portal. You can register on the e-tendering portal and fill in the PQQ before the tender starts.
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6. More Information
6.1 Further products and support
6.1.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays.
Visit the Practice Advice Service website.
6.1.2 Other Law Society materials
Legal Aid Toolkit
6.1.3 Law Society publications
Order the following titles from our bookshop:
6.1.4 Other Guidance
Legal Services Commission
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6.2 Status of this practice note
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note contact the Law Society's Practice Advice Service.
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6.3 Terminology in this practice note
Must - a specific requirement in the Solicitors' Code of Conduct or legislation. You must comply, unless there specific exemptions or defences provided for in the code of conduct or relevant legislation.
Should - good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.
May - a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.
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6.4 Definitions and Glossary
" Authorised Litigator " | a solicitor or other authorised litigator as defined in section 119 of the Courts and Legal Services Act 1990 (as amended); |
" Budget Direction " | a Direction issued by the Lord Chancellor under section 5(6) of the Act which places restrictions on the Controlled Work Budget or on the funds available for the funding of Licensed Work; |
"Confirmed Peer Review" | at the conclusion of the peer review process, following appeal and any follow-up audit; |
" Controlled Legal Representation " or " CLR " | Legal Representation which has been designated as Controlled Work under Part A of the Funding Code Procedures; |
" Counsel " | either a barrister in independent practice or (in the Family Specification only) a solicitor with higher rights of audience who works on a self-employed basis; |
" Devolved Powers " | powers given under this Specification for you to take decisions on our behalf – see further Paragraphs 1.15 to 1.17 and Paragraphs 5.4 to 5.7 (Devolved Powers in respect of Licensed Work); |
"ePortal" | where you can access the eTendering system |
" Graduated Fee " | a range of Standard Fees payable under the Specification which are designated as Graduated Fees under Category Specific Rules |
"Information for Applicants" or "IFA"' | the document that contains information, instructions, rules and Conditions of Tender that will govern the tender process and the other Tender Documents (PQQ and ITTs); |
"Invitation to Tender" or "ITT"' | the specific Services that Applicant Organisations can tender against. Eg for the immigration tender process there are eight separate ITTs which can be accessed via the eTendering system; |
" Legal Competence Standard " | the standard for Supervisors as designated in Category Specific Rules |
" Matter " | Controlled Work case governed by the Specification; |
"Pre Qualification Questionnaire or PQQ" | a document found on the e-tendering portal that has to be filled in once and then submitted with each tender. Confirms your compliance with legislation and professional conduct. |
" Schedule Authorisation " | authorisation to carry out work in a particular Category of Law as set out in your Schedule; |
" Schedule Office " | an Office for which the LSC have issued you with a Schedule; |
" Schedule Payment Limit " | the maximum sum the LSC will pay you, while a Schedule is in force, for Controlled Work; |
" SMPReconciliation Protocol " | the document of that name published on the LSC website, setting out their approach to reconciliation and to review and amendment of Standard Monthly Payments due under the Specification – see further Paragraph 4.30; |
" Standard Fee " | a fee payable under the Specification for a case or an item of work which is calculated on a basis other than Hourly Rates; |
" Supervisor " | a person you employ who the LSC have accepted as meeting the Supervisor Standards |
" Supervision Standard " | the standard for Supervisors set out at Section 2 |
" Supplementary Matter Starts " | Matter Starts issued by the LSC under Paragraphs 1.31 to 1.34; |
"Tender Documents" | the IFA, the PQQ and ITTs. |
" Tolerance Work " | Work carried out in a Category for which you do not hold Schedule Authorisation. |
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