Drugs Case Dispensed - Scottish Courts Look To Speed Up Procurement Actions

In the case of Healthcare at Homes Limited against the Common Services Agency [2012] CSOH 75, award decision letters were sent on 13th of May 2010 and a challenge was subsequently raised. However, it took just short of 2 years (1st of May 2012), for an ultimately unsuccessful bidder challenge to be rejected by the Court.

In comments at the end of his judgment, the judge noted the need to determine procurement challenges more speedily. The issue has been passed to the Court of Session's Consultative Committee on Commercial Actions. Contracting authorities and bidders alike - watch this space!!

Facts of the case

Healthcare at Homes Limited ("HAH") was unsuccessful in its bid to be appointed to the Common Services Agency ("the CSA") framework agreement for dispensing and delivery of the drug Herceptin. HAH sought an order under Regulation 47A(1)(b)(i) of the Public Contracts (Scotland) Regulations 2006 ("the Regulations") to set aside CSA's decision, arguing that the CSA had breached, on a number of counts, obligations on CSA to treat HAH equally and without discrimination and to act in a transparent and proportionate manner. HAH claimed, amongst other matters, that sections of the ITT lacked clarity, were inadequate or scored incorrectly.

The Court found that CSA had given HAH adequate information, commenting that:

"the obligation on the authority to give very precise and highly detailed descriptions of its requirements would both be very burdensome and also prevent tenderers from using their own initiative and experience to offer innovative approaches to meeting the authority's requirements."

and that:

"in assessing whether there has been adequate disclosure of a criterion or sub-criterion the court can ask whether the matter, which is alleged not to have been disclosed, would have been reasonably foreseeable by a reasonably well-informed and normally diligent tenderer as encompassed by that criterion or sub-criterion".

Of potential interest, the CSA had adopted a "silo" system of having different scorers, with different specialities, score different sections of the tender. HAH argued that the CSA had not made this approach sufficiently clear. They felt this was unfair as it...