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
As we enter a recession, we have been here before, and a key question is what did we learn and how can we benefit from that learning?
It is anticipated that as lockdown restrictions ease, and particularly with children and young adults returning to education, cases of meningitis will start to rise.
As we continue to emerge from lockdown measures and deal with local measures and the short and long term economic impact of Covid-19, local authorities will need to re-assess how services will be delivered for years to come.
The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.