Delivering on logistics

This firm recently successfully defended the Secretary of State for Health and Social Care against a claim by DHL Supply Chain Limited for summary judgment in connection with the procurement of a new logistics contract. The procurement is part of an overhaul by the Department of Health and Social Care of the NHS Supply Chain and disaggregating it from a single supplier, DHL, in order to drive efficiencies, leverage NHS purchasing power and generate savings which can be applied to front line services.

In an application before the Technology & Construction Court in early August DHL sought summary judgment on “a simple point of construction” relating to one of the requirements in the Selection Questionnaire. At the same time, the Court also heard our application to lift the automatic suspension imposed by Regulation 95 of the Public Contracts Regulations 2015 and allow the Department to enter into a contract with the winning bidder.

The case was unusual as it looked at summary judgment in the context of a procurement claim where no limitation argument was considered.

In order to defeat a claim for summary judgment a Defendant is required to show that it has a defence with “a realistic prospect of success”. The Court accepted that the construction of the Selection Questionnaire put forward by the Department was supported by other tender documents and in any event the wording should be construed against a factual basis on which the Court needed to hear evidence.

The application to lift the automatic suspension came down to a consideration of where the balance of convenience lay which is always fact specific. In this case, the judge held that the balance of convenience lay in favour of the Department allowing the automatic suspension to be lifted.

DHL were subsequently denied permission to appeal these decisions by the Court of Appeal although a claim for damages continues.

DHL Supply Chain Limited v Secretary of State for Health and Social Care [2018] EWHC 2213 (TCC) 

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