HOWZAT

The contract provided that the commission could amend any of its terms if it considered it necessary or desirable to do so in order to facilitate a reform of the legal aid scheme.

“Reform of the legal aid scheme” was defined to mean such reforms as the commission might wish to implement in order better to comply with its statutory duties or fulfil its statutory functions.

Provision was made for consultation on amendments. The amendments took effect from such date as the commission might specify, which, in general, was to be not less than 28 days after notice if the it considered that there was an urgent need for compliance and not less than 42 days after notice in any other case.

A firm might terminate the contract following an amendment which was not acceptable to it. Such a termination took effect on the day before the amendment came into effect. On termination, the firm was immediately to cease acting for the clients concerned.

In material respects, the 2006 Regulations faithfully implemented the terms of Council Directive 2004/18/EC (OJ April 30, 2004 L134/114).

Regulation 4(3) provided that a contracting authority should treat economic operators equally and in a non-discriminatory way and act in a transparent way.

Regulation 9(7) provided that where technical specifications were defined in terms of performance or functional requirements they must be sufficiently precise to allow an economic operator to determine the subject of the contract.

It was clear that, where amendments to the tender criteria or to the contract were made after an award to one party, such amendments were liable to infringe the principles in that, had the other tenderers been aware in advance of the terms of the contract actually put in place, that might have affected the terms of their tenders. Such amendments could violate the principle of transparency and of equality of treatment.

The fact that the unified contract contained express provision for amendment, and also included a consultation procedure, was not of itself sufficient to satisfy the principle of transparency.

It was plain that among the most important factors for compliance with the principle of transparency were the definition of the subject matter of the contract and need for certainty of terms.

It was true that the commission could not make arbitrary or improper amendments. But it could not be said that there were any effective limitations, still less that the parameters of change would be known to the profession. The power of amendment was so wide that it amounted to a power to rewrite the contract.

Did it make a difference that there was no competitive bidding process?

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