In Braceurself Limited v NHS England [2022] EWHC 2348 (TCC), the Technology and Construction Court held that although NHS England had made a manifest error when assessing the claimant’s tender, which affected the overall score awarded, the breach was not sufficiently serious so as to entitle the claimant to a remedy in damages.
In February 2019, NHSE completed a nationwide procurement for the provision of orthodontic services of which the relevant Lot (Lot) formed part. B was the incumbent provider and was one of two bidders for the Lot, which comprised a seven-year contract. B initially sought relief setting aside the award of the contract to the successful bidder (PAL). The stay was lifted on the automatic suspension in November 2019 and the contract was let to PAL. In December 2019, the relief sought by B was amended to include a claim for damages in the sum of £4.7 million for loss of profit, bid costs of £26,500 and loss of goodwill, which was not separately quantified.
The outcome of the competition was very close. B’s bid scored 80.25% whereas PAL’s bid scored 82.5%. B argued there should have been both upwards adjustments of its score and downward revisions of PAL’s score.
On 20 June 2022, the Technology and Construction Court (TCC) held that NHSE had made a manifest error when assessing B’s answer to a question, which affected the overall question score awarded. The judgment dealt with all issues except for that concerning the seriousness of any breach.
The remaining question for the court was that if there was or might have been a material difference to the scoring of the bids, were the breaches sufficiently serious to justify an award of damages?
The TCC dismissed B’s claim for damages because the breach was not sufficiently serious to justify a damages award. It considered 8 factors in arriving at its decision.
The eight factors are summarised as the:
- Importance of the principle which has been breached.
- Clarity and precision of the rule breached.
- Degree of excusability of an error of law.
- Existence of any relevant judgment on the point.
- State of the mind of the infringer, and in particular whether the breaches were deliberate or inadvertent.
- Behaviour of the infringer after it has become evident that an infringement has occurred.
- Persons affected by the breach, including whether there has been a complete failure to take account of the specific situation of a defined economic group.
- Position taken by one of the European Community institutions in the matter.
In the round, the Court held that the breach was not sufficient enough to allow Braceurself to claim damages. And this seems like a harsh, perhaps policy based, decision.
The NHS via the local ICBs (the new CCGs) makes manifest errors relatively often, as do all public bodies. Public Procurement law is complex, and it is easy to for NHS and other public bodies to overlook that complexity, make decisions with bias, not following its own scoring and not complying with legislation. Steven Mather has experience in public procurement claims in the NHS although he did not act in this case.
If your business has been involved in a procurement and you’ve lost and wish to challenge the decision, then you need to act rapidly as the time limits are short and work required is intense. It is expensive but can be worth it.
