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
The monthly round-up from the Anthony Collins Solicitors charities team.
In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
A recent High Court case on costs could prove essential reading for clients who have cases in the magistrates' courts.
The employment and pensions team offer practical advice on whistleblowing.
Partners, David Alcock and Sarah Patrice, have been involved in reviewing the new Code of Governance for community-led housing, published on 21 May 2021 by the Confederation for Coop Housing.
Following the eviction ban being lifted on 31 May 2021 and further to our previous ebriefing, the new notice of seeking possession forms are now available on the Government website as Word versions.
The European Court of Justice's standpoint on the Wiener Wohnen landowning developer case, and how the level of influence over the work did not amount to a decisive influence.
The Law Commission's Technical Issues in Charity Law report revealed that many charities struggle with a range of technical issue in the law.
The Law Commission recommended four key changes to the law in respect of mergers and the incorporation of charities which we have detailed in this ebriefing.
Over the last few weeks, we have published individual ebriefings on some of the key changes to be implemented following the Government’s response to the Law Commission’s report.
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