Public Procurement: Court Makes Landmark Ineffectiveness Order

• Published date: 07 September 2022
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Gowling WLG
• Author: Ms Alison Richards, Christopher Brennan and Henry Stride

At the end of July, the High Court handed down a landmark procurement decision in the case of Consultant Connect Limited v NHS Bath ICB and Others [2022] EWHC 2037 (TCC).

The Defendants were three NHS clinical commissioning groups (CCGs) in the southwest who ran a joint procurement for a contract to provide electronic communications services for GPs. The Defendant CCGs asked the Claimant and another provider, Cinapsis, to present their products at a demonstration event, however, the Claimant (Consultant Connect) was unaware that it was being marked, or that there was a scoring system in place.

It was evident that information had been provided to Cinapsis that would help Cinapsis win the contract. Following respective presentations by the bidders, the Defendants decided to award the contract under a previously tendered NHS-wide framework agreement to which Cinapsis was a party, whereas the Claimant was not. The Defendant CCGs then held a "mini competition" in which Cinapsis was the only party invited to tender and which excluded the Claimant as a non-framework supplier. The contract was subsequently awarded to Cinapsis with the Claimant being scored in second place.

In this article, we explore the issues raised by this landmark case, which sees the first-ever use of a shortening order in the UK to allow the Defendants to proceed with a lawful procurement. The ruling that a non-framework supplier can challenge the award of a call-off contract will have wider implications for public procurements and there are some key learning points that can be taken on board.

The issues at hand

The Claimant challenged the Defendant's decision based on alleged non-compliance when awarding a call-off contract under a framework agreement.

Contracting authorities must comply with both Regulations 18 and 33 of the Public Contracts Regulations 2015 (PCR) when awarding call-off contracts and the Claimant alleged that the Defendant's decision was unlawful due to breach of these provisions.

Regulation 18 sets out the key principles of any procurement process, including:

1. the obligation to treat all economic operators equally and without discrimination;
2. not designing a procurement exercise with the intention of excluding it from the application of the PCR or of artificially narrowing competition; and
3. competition being considered to be artificially narrowed where the design of the procurement is intended to unduly favour or disadvantage certain economic operators.

Regulation 33 sets...