High Court judge dismisses procurement claim alleging fault in tender platform, blames panic by bidder over deadline

Panic over an imminent deadline - and not a software fault in a tender platform - was the cause of a company missing its chance to bid for NHS contracts worth millions of pounds, the Technology and Construction Court has found.

Adam Constable KC, sitting as a deputy judge of the High Court, rejected the case brought by Inhealth Intelligence Limited (IIL) against NHS England, which it argued was liable for a fault in the platform.

Four contracts were offered for child health information services for various NHS bodies.

IIL has operated in this field for more than 25 years and intended to bid. It said it was unable to because of an error in uploading a single document to e-tendering portal operated by provider Intend.

A subsequent NHS investigation found IIL's bid was not submitted by the deadline, and so was disallowed.

IIL’s healthcare development manager was responsible for uploading the documents provided by the bid team by the deadline.

He said that 20 minutes before the deadline the bid was ready to be submitted but the portal had a problem with one document and after further attempts the healthcare development manager received a message: “The file you are trying to upload already exists. Please try again” and he was still unable to complete the bid.

After hearing lengthy evidence and consulting logs, Judge Constable said in Inhealth Intelligence Ltd v NHS England [2023] EWHC 352 (TCC) that on balance of probabilities the error message that asked the healthcare development manager to remove and re-upload the troublesome document took something less than a minute to read, understand and act on and “was in no way problematic and could not of itself be considered any type of inherent flaw in the software”.

The judge said an audit view log showed a document removed four minutes before the deadline.

“It is clear from whichever log is examined, however, that there was no other successful upload to the portal from this moment on,” Judge Constable said.

“Therefore, where [the healthcare development manager] has described, either in his contemporaneous message or in his witness evidence, that further uploads took place, he is certainly mistaken.”

After various further confusion over document submissions the deadline passed at noon on 12 July 2022, “and IIL had plainly not in my judgment submitted its tender to NHS England as required”, Judge Constable found.

He said it was clear as a matter of fact that the initial error messages requiring specific documents to be removed and uploaded were easily understood and capable of being easily dealt with.

The healthcare development manager then tried to upload a document to the portal which already existed there, generating an error message.

“It is plain that the reason [the healthcare development manager] did not work out what the issue was, was because he was in a panic,” the judge said.

“This itself was caused by the fact all this was happening at 11.50, with 10 minutes to go until the portal closed. In my view, it is unlikely that [the healthcare development manager] spent more than a couple of minutes trying to think through and resolve the problem before, effectively, giving up, calling his boss and, no doubt as requested, concentrating on evidencing the state of affairs through screenshots.

“I am left in absolutely no doubt that if the submission process had been started even 20 minutes earlier, [the healthcare development manager] …would have worked out that a simple human error lay behind the problem and it was not (and I so find) a problem with the software or the portal.”

Rejecting IIL’s case that it was the victim of a software error for which NHS England bore responsibility, Judge Constable said: “Whilst I accept that subjectively [the healthcare development manager] did not understand the error message in the frantic and panicked state he was in at around 11.52am on 12 July 2022, it is clear that neither the software package nor NHS England were responsible for this.

“Whilst I have considerable personal sympathy for [the healthcare development manager], I am left in no doubt that responsibility for the failure to submit the bid lies squarely with IIL.”

He noted: “I emphasise that I do not consider for one moment that [the healthcare development manager] was not trying properly to assist, but it is frankly unsurprising that [his] own recollection of precisely what happened is not necessarily accurate in relation to what must have been an extremely stressful time and during which he was not thinking clearly.”

Mark Smulian