Procurement case law: Winter 2022/23

Katrina Day and Mary Mundy analyse recent judgments of interest to procurement practitioners.

Failure to submit a tender by the deadline

Many Contracting Authorities (CA) and bidders will have faced issues relating to tender submissions and what to do if a bid (or part of a bid) is submitted late. In the case of InHealth Intelligence Ltd v NHS England, NHS England was challenged by a bidder for excluding a late bid.

The court rejected the challenge.

What happened?

The bidder InHealth attempted to submit a bid via NHS England’s electronic portal In-Tend, but encountered difficulties uploading documents. As InHealth was unable to upload all of the documents and this bid was incomplete, the system automatically prevented the whole bid from being submitted. The deadline for submission was therefore missed.

The cause of the problems was investigated and it was established that this was due to an error by the bidder and not as a result of any failure by NHS England or its system.

NHS England’s Invitation to Tender (ITT) clearly stated that tenders received after the deadline would be excluded and NHS England therefore excluded the bid.

What have we learnt?

• For bidders it is vital to allow enough time to understand the system used and submit the bid. The Court expressed sympathy for the bidder about the situation, but established that in this case responsibility for the failure to submit on time lay with the bidder.
• The starting position for CAs should be to check what the ITT says about the treatment of late or non-compliant bids.
• The clear wording in the ITT was very helpful in this case, so CAs should check their ITTs to ensure this wording is robust.
• CA should investigate the facts leading up to a late submission / failure to submit as there is a “residual discretion” for “exceptional circumstances” e.g. if the CA is at fault.

Using frameworks

Use of frameworks is a common and useful route to compliantly appoint suppliers but, following case law in this area, CAs should be careful to ensure the use of frameworks is not being manipulated. In the case of Consultant Connect Ltd v NHS Bath et al, a group of three CAs in the NHS was successfully challenged for its use of a framework.

What happened? 

The CAs were looking to jointly procure a communication system and held a “demonstration day” which, unknown to the potential suppliers, was scored. The outcome of this was that the CAs concluded that Cinapsis (an incumbent supplier of one of the CAs) was their preferred supplier and they then looked for an appropriate procurement route to appoint them.

A suitable framework was identified and Cinapsis was invited to participate in a mini- competition under the framework, but no other supplier was invited to participate.

The CAs were found to be in breach of the Public Contracts Regulations 2015.

What have we learnt?

• CAs need to be conscious of possible bias in procurement procedures (e.g. where incumbents are involved) which could give rise to a conflict of interest and take steps to manage this (potential) conflict.
• Care needs to be taken not to manipulate a framework to get your desired outcome. CAs must follow the rules relating to direct award and mini-competitions. Mini-competitions cannot be held with one bidder.
• A challenge can be made by suppliers which are not on a framework.

Understanding your requirements

Training for evaluators is very important and the case of Braceurself Limited v NHS England highlights the need to ensure that evaluators are familiar with the specification as a misunderstanding about the CA’s requirement led to an error with scoring.

What happened?

In a procurement for orthodontic services the incumbent supplier lost by a close margin and successfully challenged the decision. It was established that the evaluators had misunderstood the bid and their own specification requirements.

The court found there was a manifest error in relation to scoring but that this was not sufficient to justify damages. An appeal is currently pending in relation to the issue of damages.

What have we learnt?

• It is important to ensure evaluators understand their obligations and document their scoring.
• The moderation process may identify differences of interpretation or areas of confusion – these should be addressed using clarification questions.
• The court looks at the entire process and evidence of good planning and organisation gave the court more confidence in the CA’s overall approach.

Consensus scoring and more

Scoring is pivotal to procurement processes and the case of Bromcom v United Learning Trust highlights the importance of the moderation process and arriving at a consensus score. The case also looked at a range of useful issues including incumbent advantage, late submissions and corrections.

What happened?

In a procurement for a cloud-based Management Information System for 57 academy schools an unsuccessful supplier challenged the outcome in relation to the method of scoring and manifest errors in scoring.

The final scores were identified by calculating the average score of the evaluators and this was found to be non-compliant.

The challenger also raised questions about the use of Dropbox to submit a bid and whether documents could be submitted or corrected after the bid deadline.

What we have learnt?

• Some level of moderation to arrive at a final consensus score is essential, so that there is a record of the reasons for the score awarded. This cannot be achieved with average scoring as there is no agreed reason for the score.
• Incumbents will often have an inherent advantage in bids but CAs are not obliged to neutralise everything. They must however do this where this is economically acceptable and does not infringe the incumbent’s rights.
• Submitting documents using a Dropbox was not compliant as it did not clearly show the date and time of submission and could still be accessed after the deadline.
• Accepting a document late was permissible where it was not a mandatory document.
• Corrections after the deadline were permissible if this is permitted by the ITT and the change was minor. In this case the bidder’s position was worsened by the correction.

Katrina Day is a Legal Director and Mary Mundy is a Partner at Capsticks.