"You've got to be in it to win it"

For procuring authorities and suppliers in England, Wales and Northern Ireland there is a big focus on public procurement reform, given the significant changes on the horizon. However, the recent judgment of InHealth Intelligence Limited v NHS England [2023] EWHC 352 (TCC) should serve as a reminder to suppliers currently participating in procurement exercises that they need to remember the basics, such as leaving enough time to prepare and upload their tenders, in order to stand a chance of being successful.   

The claim, brought under the Public Contracts Regulations 2015 (the PCR) by InHealth Intelligence Limited (IIL), concerned a challenge to a decision made by NHS England (NSHE) to exclude their bid to provide Child Health Information Services (CHIS).

The Facts

Terms of the Invitation to Tender

On 9 June 2022 an ITT was published by NHSE requesting bids for CHIS across four Lots. Bidders were able to bid for multiple Lots and the ITT made clear that, regardless of how many Lots a bidder opted to bid for, each Lot concerned a separate contract and therefore were to be evaluated separately.  

Submissions were to be uploaded to a designated Portal by 12:00pm on 12 July 2022. The ITT expressly stated that “any late submissions will not be accepted”. This was bolstered by the statement that “[t]he Contracting Authorities will not consider any tender response received after the stated deadline and failure to submit a response by the deadline will result in the exclusion of the bidder from participating any further in this procurement”.

NHSE reserved the right to extend the closing date and time for the receipt of tenders.

Other relevant key terms of the ITT included:

• the requirement to use appropriate file naming conventions, including a warning that the Portal would not accept files with the same name; and
• the requirement for bidders to upload documents/ fill in sections marked as ‘mandatory’ to submit a bid.

IIL’s attempt at submission

IIL intended to submit bids for all four Lots. All relevant documents and answers relating to Lots 1-3 were uploaded ahead of the deadline. However, ILL was still attempting to upload documents for Lot 4 minutes before the deadline. An error message popped up in relation to duplicate file names and, as a result, a mandatory field could not be filled and the bid was not submitted by the deadline.

It transpired that an error was made by an IIL employee who had attempted to upload two documents with the same name. This was not permitted by the Portal.

Key Issues

NHSE made the decision to exclude IIL’s submission due to missing the deadline. IIL challenged this decision claiming that:

1. its submission with respect to Lots 1-3 should be accepted due to the ITT specifying that each Lot pertained to a separate contract, meaning that it should be interpreted to mean that bidders should submit separate bids for each Lot;
2. the error message that popped up in relation to the duplicated file names was not clear, or ‘transparent’; and
3. NHSE could have extended the submission period to allow for IIL to submit its bid for tender and therefore choosing to exclude IIL’s submission was unlawful.

The Court found that:

1.Separate bids for separate Lots

The terms of the ITT were sufficiently clear that bidders were to submit a single bid which incorporated all Lots they were choosing to bid for.

The contracting authority had no obligation to design the procurement process and Portal to allow for separate bids. It was entirely reasonable for the contracting authority to use the Portal, an ‘off-the-shelf’ product, for the purposes of the procurement exercise as opposed to a bespoke-designed-product, as long as the functionality is suitable and clearly explained within the ITT.

2. Transparency of the ‘error’ message

IIL was erroneous in its submission of documents with the same name, contravening the terms of the ITT and, therefore, responsibility should lie with them with respect to the error message. In any event the error message was sufficiently clear and transparent.

A word of caution was provided by the Court in saying that extra time and attention should be taken in the technical submission of a bid to avoid missing deadlines, pointing out that had IIL spent more time on the uploading and less time focused on the content of the submission, it may have avoided the exclusion.

3. The lawfulness of NHSE’s decision

The functionality of the Portal was fit for purpose and uploading errors were not the fault of the contracting authority, therefore the decision to exclude was lawful.

Of particular interest to procuring authorities is that the Court makes clear that, at law, there will always be a discretion “to waive non-compliance with the requirements of an ITT if it is necessary to do so to ensure equality, transparency and proportionality of the procedure as a whole, and doing so does not offend against those same principles”, referencing the following principles considered in QMAC Construction Limited v Northern Ireland Housing Executive [2021] NIQB as authority when considering a contracting authority’s discretion:

• “The precise terms of the tender documents require close analysis in any given case. It is important to consider whether, for instance, a Contracting Authority has reserved to itself a wide discretion to admit late tenders or permit missing documents to be furnished after a deadline has expired or whether a bright line exclusionary rule has been adopted;
• Even where a bright line rule appears, a Contracting Authority must consider the principle of proportionality. There may be exceptional circumstances, such as the fault of the authority, which justify the admission of a late tender or missing documents;
• Where the Contracting Authority does have a discretion, it must only exercise it in accordance with the principle of equal treatment. One element of this requires that any missing documents or information must objectively be shown to pre-date the tender deadline;
• The starting point is that deadlines are to be respected and only exceptionally should a Contracting Authority permit the submission of late or missing information.”

It is necessary, irrespective of how clear ITT terms are, for a contracting authority to satisfy itself on the facts of a case that strictly applying the stated rules is appropriate to satisfy the principles of equal treatment, transparency and proportionality.

In applying this reasoning to the case at hand, the Court noted that not only was there no obligation on the NHSE to exercise discretion to meet such requirements, but that excluding late submissions is generally necessary to comply with the PCR and that the extension of any deadline for ITT would contravene the principles of equal treatment with respect to the other bidders within the procurement process due IIL’s failure to submit on time being solely attributable to its own error.

Application for Interim Relief

It is interesting to note that, earlier in the proceedings, IIL had made an application for interim relief. No damages were awarded, but the Court ordered an injunction causing the suspension of the live procurement process, pending the outcome of this case which dealt with the substantive issues. The judgment makes clear that in situations such as these, where the challenge is not to the outcome of the competition but to an “in-flight” procurement, there is no automatic suspension. See the previous judgment here.

Comment

The judgment raises important points for both procuring authorities and suppliers. For procuring authorities, it is a reminder to ensure your instructions on submission requirements and submission process are completely clear.  For suppliers, the case serves as a cautionary tale. Build in contingency time to account for potential technical difficulties when uploading to a Portal, otherwise you may end up missing out.

The full judgment can be found here.

This article was co-authored by Anna Gillespie, trainee solicitor.