Procurement Cases: The beat goes on!

There have been a number of recent procurement law cases which, if anything, proves that if you think procurement law is necessarily settled, it might not be – although of course many cases turn on the particular facts of the situation and the eloquence of the barristers arguing cases in court.

Here is one of the most relevant cases Inhealth Intelligence Limited v NHS England [2023] EWHC 352.

This case concerned the issue of what happens when a bidder makes a minor technical error in uploading its submission. In this case, an IT company (ironically!) had to upload a suite of documents to the NHS. On uploading its material to the NHS England Portal (20 minutes before the deadline) a series of error messages were received and, in one case, on trying to upload a document the manager was told “The file you are trying to upload already exists”. The Manager took screenshots showing when it appeared that there had been a system error. When NHS England opened the bids it determined that some parts of the submission had not been properly submitted within the time limit, and held that there was “no ground for extending time”. As such, the bid was considered to be non-compliant and rejected.

The Judge held that:

• NHS England were entitled to use this computer system and its operation was suitable and clearly explained within the ITT, which met the basic requirements of equal treatment, transparency and proportionality.
• The error messages were sufficiently clear and if the Manager had thought it through he should have been able to remedy the situation.
• The decision not to waive the ITT requirements was not unlawful. Interestingly, however, the Judge stressed that no matter what the ITT states, there is always a residual discretion to waive non-compliance with the requirements of an ITT “if it is necessary to do so to ensure equality, transparency and proportionality of the procedure as a whole, and doing so does not offend against those same principles”. These provisions are of course embodied within Regulation 56(4) of the Public Contracts Regulations 2015, which provides that where information is “incomplete or erroneous” there is the power to allow bidders to “submit, supplement, clarify or complete their tender”.

The key points from the above are that whilst a Public Authority may have discretion to allow a late submission because of some minor error, the Courts will be very cautious about suggesting that Public Authorities have an obligation to extend deadlines to deal with a minor error or failing. In my opinion, it is often appropriate for an Authority to allow a tenderer to “put his house in order” where to do so is as a result of a minor error that falls into the but “for the grace of god” scenario, and where to do so would not prejudice the rights of other tenderers – but this case does provide useful guidance on what is a question that we are asked on many occasions.

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If you would like to discuss anything covered in this article please contact Stephen Pearson.