Working on Wellbeing Ltd trading as Optima Health v Secretary of State for Work and Pensions & Ors
[2024] EWHC 766 (TCC)
InHealth Intelligence Limited v NHS England
20 February 2023
[2023] EWHC 352 (TCC)
High Court
A company missed the deadline to submit a bid for a contract because of its own mistakes while using an online submission system. The rules were clear, and the company didn't get the contract because it missed the deadline, even though it had tried to submit the bid.
Key Facts
- •Inhealth Intelligence Limited (IIL) failed to submit its bid for Child Health Information Services (CHIS) contracts by the deadline due to issues with the e-tendering portal.
- •IIL argued that the portal's design was defective and the error message unclear, preventing submission despite having uploaded all necessary documents.
- •NHS England argued that IIL's failure to submit was due to its own errors and that the ITT clearly stated the consequences of late submissions.
- •The procurement process involved four lots, with significant contract values and durations.
- •IIL’s bid was not submitted by the deadline because of errors in uploading documents and misunderstanding error messages, despite all questionnaires being answered and attachments uploaded (but possibly in wrong places).
Legal Principles
Contracting authorities must treat economic operators equally and without discrimination, acting transparently and proportionately.
PCR 2015, Regulation 18(1)
Contracts are awarded only if the tender complies with requirements and criteria set out in the procurement documents.
PCR 2015, Regulation 56(1)(a)
Contracting authorities may request clarification or completion of information, but must comply with equal treatment and transparency.
PCR 2015, Regulation 56(4)
A residual discretion exists to waive non-compliance with ITT requirements to ensure equality, transparency and proportionality, even without an explicit provision in the ITT.
Regulation 18
Deadlines are crucial in tendering; waivers are exceptional and should only occur in exceptional circumstances, such as authority fault.
Leadbitter & Co Ltd v Devon County Council, Azam & Co Solicitors v Legal Services Commission
Outcomes
IIL's claim failed.
IIL's failure to submit its bid was due to its own errors, not defects in the portal or unclear error messages. The ITT clearly outlined the consequences of missing the deadline, and NHS England acted fairly and within its discretion by not waiving the rules.
IIL's bid responses were treated as a single bid, not four separate bids.
The ITT, objectively interpreted, required a single bid for all chosen lots to be submitted at once. This was made clear through the structure and instructions of the ITT.
The portal's design was not defective and error messages were sufficiently transparent.
While IIL experienced difficulties due to time pressure and human error in misplacing files, the system's functionality and the error messages were not at fault.
NHS England's decision to exclude IIL's bid was lawful.
The decision was not manifestly flawed or irrational. IIL failed to meet the deadline due to its own errors, and waiving the rules would have risked violating the principles of equality and transparency.
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