Stairway to … the dentist’s chair!

We have recently had an interesting judgment in the case of Braceurself Ltd v NHS England [2022] EWHC 1532 (TCC). 

NHS England ran procurement process to award an NHS orthodontics contract in a particular region in southern England. There were only two bidders for this particular contract; the claimant, Braceurself, was unsuccessful. However, it scored only 2.5% less than the winning bidder. With the difference in scores being so negligible the claimant had everything to gain by scrutinizing the evaluation and bringing a claim alleging breach of the Public Contracts Regulations 2015.

The claimant attempted to use the automatic suspension mechanism to halt the award of the contract, but at the preliminary hearing in relation to this, the court lifted the suspension following an assessment of the situation on American Cyanamid principles (if you are interested to learn more about automatic suspensions and when they may be maintained/lifted, please see the discussion in this recent blog post).

At the main hearing, the claimant made several allegations of breach; the most relevant for our purposes here was an allegation that the evaluators had made a mistake in the evaluation. The specification required bidders to meet certain requirements around ensuring access for disabled patients. The claimant’s offer included a stair climber to allow such access. The evaluators mistook this for the offer of a stair lift – and scored the claimant’s bid downwards as a result. 

The case turned on whether this mistake was a manifest error on the part of the evaluation team – and in assessing this the court provides a useful overview of the law in this area. 

The key principle is that the courts will not generally interfere with evaluation decisions. The exception is where there has been (1) a breach of the principles of transparency, equal treatment and non-discrimination or (2) the authority ha made a “manifest error” in how it has conducted the evaluation, which is clear and obvious and which can be corrected on the face of the evaluation documents. The court noted that manifest error is the close relative of the public law concept of “irrationality” – and that, as such, proving it is high bar for the claimant to get over. 

In this case, the court was persuaded that the evaluators had simply made a mistake in their understanding of the claimant’s offering in relation to patient access. Had this mistake not been made, the claimant would in fact have won the contract. There will be a further hearing to assess the level of damages that NHS England will be liable to pay to the claimant.

Although the case didn’t go the authority’s way overall, the court did reject some of the broader complaints made about the evaluation by the claimant:
•    each question was divided up into several parts, but no separate weighting was provided for each part; the court commented that a composite score was acceptable;
•    the moderation meeting notes were not an exhaustive/verbatim account; the court noted that the meeting notes provided were sufficient to do the job they needed to do (namely, to allow the claimant and the court to understand how the evaluators had reached the decisions they had reached); and
•    the approach of using different evaluators to evaluate different questions was acceptable, as this reflected the need to engage evaluators with varying expertise appropriately. 

These findings are a reflection of the fact that, beyond manifest error and breaches of the general principles, the court will not dictate how an evaluation should be carried out. Authorities need to be careful to avoid manifest error and breaches of the principles, but otherwise can take comfort that the court will respect the “margin of appreciation” in how the authority chooses to run the evaluation.

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