While the waiting for the results of the criminal duty contract tenders is now over, the uncertainty for both the winners and losers amongst criminal legal aid firms looks set to continue. The tender announcements made last week seem set to unleash an avalanche of litigation which could still halt the process.   LAG understands that firms from across the country which lost out in the tender bids will be challenging the Legal Aid Agency’s (LAA) decisions to award contracts to their rivals. They have undoubtedly been emboldened to bring these claims by the emergence of a whistle blower from within the LAA who has publicly criticised the tender process. Freddie Hurlston, who was recruited by the LAA to work on assessing the bids over the summer, has been scathing about the procedures and quality of the staff recruited to to do this.   Until taking voluntary redundancy in 2009, Hurlston had been employed at the Legal Services Commission (the predecessor to the LAA) as the Head of Criminal Justice System Initiatives. According to former colleagues he was a staunch supporter of tendering for criminal legal aid work and is not someone who would have gone public with his criticisms unless he was deeply concerned.   So far the LAA has robustly defended the tender exercise. They would have anticipated some litigation as the stakes are so high. Those firms without duty contracts will lose out on picking-up new clients and could face closure. They therefore have nothing to lose by challenging the LAA in the courts.   In addition to the litigation around individual tender decisions,  most likely LAG understands to be brought under procurement law, Hurlston’s allegations raise the possibility of a systemic challenge to the tender process- perhaps via a judicial review?   Anticipating what will happen next is difficult. If the first couple of cases to reach court go against firms this would likely lead to a flurry of withdrawals and the commencement of contracts as planned in January. However, if some complaints of flaws in the process were upheld resulting in re-tendering in some areas, this could lead to litigation from firms previously successful in their bids. Presumably they would react similarly if the LAA were found to have had systemic faults in the process which resulted in all of the tenders being suspended or withdrawn?   Some might well be hoping for the derailment of the whole tender process, but this could be a case of being careful what you wish for. There seems to be a consensus in the world of criminal legal aid that due to falling crime rates there is insufficient work to sustain the current number of firms. For ten years or so policy makers have responded by trying to design tender systems to fairly distribute duty work (the last Labour government abandoned its plans to do this just before the election in 2010). The profession so far has successfully fought off price competition to differentiate between bidders, but a failure of the current tender round could put this back on the table.   * The November edition of Legal Action will feature an article on the tender controversy including interviews with the winners and losers and Freddie Hurlston.