Award criteria and clarity

In Healthcare At Home Ltd v The Common Services Agency [2014], the Supreme Court has dismissed an appeal and held that lower courts were correct in finding that the award criteria for the procurement were sufficiently clear.

Going back to 2010, the Appellant was the incumbent supplier of cancer drugs to the Common Services Agency but was unsuccessful in its bid to renew the contract. After bringing various complaints about parts of the evaluation, the Appellant challenged on the basis that the CSA had breached the obligations in the procurement Regulations on transparency and equal treatment.

The Supreme Court held that transparency and equal treatment claims on evaluation criteria are not concerned with whether the tenderers interpreted the award criteria in the same way, but instead whether the criteria were such that it would allow bidders to interpret it in the same way. This is therefore an objective test, and does not depend on how the tenderer had actually interpreted the criteria.

The judgment made a wider point about procurement litigation in the UK. Perhaps drawing parallels with the systems in Germany and other EU member states, the judges commented that a quicker way of deciding public procurement challenges would be useful as the public authority is not able to award the contract whilst the decision is being made. This can of course be practically frustrating for public authorities when the challenge is unsuccessful.

David Hansom is a partner and head of the public sector group at Veale Wasbrough Vizards. He can be contacted on 020 7665 0808 or This email address is being protected from spambots. You need JavaScript enabled to view it..