Dukes Bailiffs Limited v Breckland Council
[2023] EWHC 1569 (TCC)
Braceurself Limited v NHS England (No 2: Substantive Appeal)
30 January 2024
[2024] EWCA Civ 39
Court of Appeal
A company lost a big NHS contract and claimed the NHS made a mistake that cost them the contract. A judge said the mistake wasn't big enough to get them money. The appeals court agreed, saying the mistake, while impactful, wasn’t serious enough considering other factors. The company didn't win.
Key Facts
- •Braceurself Limited (appellant) lost a bid for a £32.7 million NHS contract to PAL.
- •The difference in scores between the bids was very close (2.25%).
- •The appellant alleged a breach of the Public Contract Regulations 2015 (PCR) by NHS England (respondent).
- •The High Court judge found a single manifest error in the respondent's assessment of the appellant's bid concerning accessibility of premises (CSD02).
- •This error, if corrected, would have resulted in the appellant winning the contract.
- •The High Court judge held that the breach was not 'sufficiently serious' to warrant damages under the Francovich principle.
- •The appellant appealed the judge's refusal to award damages.
Legal Principles
Francovich damages require proof of a breach of the PCR and that the breach is 'sufficiently serious'.
Francovich v Italy (C-C/90) [1991] ECR 1-5357; Public Contract Regulations 2015
'Sufficiently serious' breach determined by considering factors such as clarity of the rule breached, the discretion left to authorities, intentionality of the infringement, excusability of error, and impact on those affected.
Brasserie du Pecheur v Federal Republic of Germany [1996] QB 404; R v SoS for Transport Ex Parte Factortame (No.5) [2000] 1 A.C. 524
In public procurement, the principle of fair and open competition, and awarding the contract to the Most Economically Advantageous Tenderer (MEAT), are central.
Energy Solutions EU Limited v Nuclear Decommissioning Authority [2017] UK SC 34; Risk Management Partners Ltd v Brent London Borough Council [2011] UK SC 7
A finding that the contract would have been awarded to the claimant but for the breach is not, in itself, determinative of whether the breach is 'sufficiently serious'.
This case
Excusability and the state of mind of the infringer are relevant factors in assessing the seriousness of a breach, even in the absence of bad faith.
Factortame, Delaney v SoS for Transport [2015] 1 WLR 5177
The principle of effectiveness requires a party to have access to a remedy, but does not guarantee success or override the 'sufficiently serious' test.
Combinatie Spijker Infrabouw-De Jong Konstruktie and Others v Provincie Drenthe (C-568/08)
Outcomes
Appeal dismissed.
The Court of Appeal held that the High Court judge did not err in principle in finding the breach was not 'sufficiently serious'. The court emphasized the need to consider the nature and quality of the breach, not just its consequences. The judge properly considered all relevant factors, including excusability and the respondent's state of mind. Furthermore, the court found that the judge's finding that the respondent's error was not legally significant was incorrect, thus providing an alternative basis for dismissing the appeal.