Citation: [2023] EWHC 352 (TCC)
Summary of Facts
The Defendant conducted a procurement process for the NHS in England and had launched a procurement competition in which the Claimant, InHealth Intelligence Limited (“InHealth”), intended to participate. Bidders were required to lodge bids online via an e-portal. InHealth had attempted to submit a bid prior to the tender deadline but, as a result of an error in uploading two of its documents for one of the Lots, and having not finalised its bid for submission until just before the deadline, was unable to do so. An employee of the Claimant uploaded a document that formed part of the Claimant’s bid on to the e-portal but in the wrong place. When he tried to upload it to the correct place, the e-portal would not permit the same document to be uploaded in two locations. The employee sent a message via the e-portal six minutes before the deadline asking for help. The message was acknowledged 52 minutes after the deadline, but the matter was not resolved.
The Claimant brought proceedings under the Public Contracts Regulations 2015, challenging a decision by NHS England that it not be permitted to submit a late bid to deliver CHIS services across four Lots, covering the Greater Manchester, Midlands and East of England regions (the value of the contracts together totalling over £100 million).
InHealth challenged the design and operation of the portal, the requirement that bidders submit a single bid covering all four Lots (rather than separate bids for each Lot), and the refusal by NHS England to permit it to submit a late bid or to consider those documents which it had uploaded (but not submitted) via the portal.
Following an expedited timetable and a four day trial, the High Court found in NHS England’s favour and dismissed the claim in its entirety.
Judgment was handed down on 20th February 2023 in InHealth Intelligence Limited v NHS England [2023] EWHC 352 (TCC).
Rhodri Williams KC, leading Jonathan Lewis and instructed by Hempsons LLP, acted on behalf of NHS England, which was successful in defending the claim on all grounds brought against it.
