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
Dementia currently affects 1 in 14 people in the UK. Many people will either know someone with dementia, have had to support and care for someone with dementia or have been diagnosed themselves.
The 2022 Code replaces the NHF Code of Conduct 2012 (the 2012 Code) and sets out the baseline standards that the NHF expects of its member registered providers (RPs).
The High Court has dismissed a challenge by the Police Superintendents’ Association to the closure of legacy public sector pension schemes.
In my recent blog, I said that we would be issuing a series of ebriefings and blogs highlighting issues with the Procurement Bill. This is the first of these.
Contractors and delivery partners are facing a ‘perfect storm’ in many cases with a number of factors directly impacting upon the profitability of their work.
Worker status, like Piers Morgan, is one of those things that we think has gone away and then it pops up again!
We are seeing a steady trickle of decisions focused around the issue of flexible working requests or employer requirements for changes to working patterns (both pre and post the pandemic).
For those of us who have endured a choppy cross channel journey, the mention of P&O Ferries will invoke some nauseous memories.
Successive generations have witnessed seismic shifts in the workplace; post-war it was the return of the soldiers and the impact on working women who had to work in their place.
In this podcast, Puja Desai interviews Kimberley Foster and discusses her experience with counselling. This is a really helpful podcast for anyone who has thought about counselling.