LSC consults on Best Value Tendering for Criminal work

In December the LSC released details of a new consultation on Best Value Tendering (BVT) for criminal defence services.
 
The paper states that it is a consultation on general principles and that following it, the LSC will decide whether or not to proceed with BVT.
 
Given the emphasis placed on BVT by Lord Carter, it seems disingenuous of the LSC to claim to be consulting on whether to introduce BVT in criminal work. The recent Court of Appeal decision in the case brought by the Law Society has made it even more likely that BVT will be introduced, sooner rather than later, in criminal and civil work.
 
The paper raises a large number of issues that will be central to the rolling out of BVT in civil as well as criminal work. All those interested in the future of legal aid will therefore need to consider this paper carefully, and respond accordingly.
 
The basis of the new proposals is as follows:

• Firms will be asked to tender on the basis of price, with prices being set by competition rather than an administrative process. The rate will be set by the market based on local circumstances.
• A requirement of a peer review rating of at least 3 (Threshold Competence).
• Firms must be able to demonstrate capacity to offer the required client access and that they have a well run and financially stable business.

Issues

The paper includes a section on how to ensure quality in the bidding process and more generally, and seeks feedback on how the LSC can assure continuing quality.
 
The paper acknowledges the problem of fluctuations in volume of work, and the issue of what might happen if there are major changes during the life of the contract. It discusses what risks should fall on firms and which should fall on the LSC.
 
The paper invites views on how to package the work providers could bid for, and whether out of area work should be permitted, as recommended by Lord Carter.
 
The paper asks what length of contract should be offered. The LSC states that it will be taking advice from its economic consultants, but presently has no set views.
 
Questions are also asked on how the LSC should deal with niche work, new market entry and consortium bids, and how the system would work in areas where there is a Public Defender Service office.
 
The paper asks how equality and diversity can be promoted within the BVT process, and specifically whether part of the market could be reserved in some bid areas to enable small firms to grow.