The case concerned an online auction for the provision of clinical waste services where the NHS (England) Service Commissioning Board (NHSE) was challenged for failing to investigate whether the lowest-priced bid was abnormally low.
Waste specialists SRCL Ltd challenged the award of the contract, saying that the NHSE is required to investigate whether a tender is abnormally low under Regulation 69 of the Public Contract Regulations 2015 (PCR 2015), and that the NHSE could only accept a potentially abnormally low tender if it is satisfied with the explanation from the suspected ‘low-bidder’.
The Court said that there is nothing in Regulation 69(1) PCR 2015 which suggests that a public authority, or other organisation subject to PCR 2015, has a general duty to investigate all abnormally low tenders. There is only a duty to investigate a bid which they are considering rejecting on the basis of it being abnormally low.
The Court’s stance was a surprise, given earlier case law² which had seemed to suggest that a public body would have to seek clarifications from suspected low-bidders.
In a separate point, the Court said that it will not look kindly on a contractor who contrives to make an artificially high bid with the sole aim of challenging the outcome of a tender process which it knows it cannot win. Clearly the Court had little sympathy with the challenger here.
If you have any questions about this e-briefing, or have any other procurement concerns, please contact Andrew Millross.
Notes:
¹ SRCL Ltd v National Health Service Commissioning Board [2018] EWHC 1985 (TCC)
² SAG ELV Slovensko and Others [2012] EUECJ C-599/10
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