Public Procurement: Court Makes Landmark Ineffectiveness Order

• Published date: 07 September 2022
• 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...