Legal challenges by losing tenderers to the outcome of public procurement exercises are relatively common, but it is very much rarer for a judge to be asked to nip such an exercise in the bud. However, that is exactly what happened in a case concerning NHS contracts worth in excess of £140 million.
A company was intent on bidding for the contracts but, due to a mistake, there was a delay in its bid documents being uploaded to an online portal. NHS England took the view that the company had not submitted a compliant bid by a strict deadline. On that basis, it refused to recognise the company as a tenderer or to evaluate its bid. The company launched proceedings, arguing that the refusal was unlawful.
The company applied for an interim injunction with a view to enforcing a suspension of the entire procurement competition until its case could be heard and decided by a judge. During the hearing of that application, however, an accommodation was reached whereby NHS England agreed to such a suspension. It did so after becoming aware that a speedy trial of the company’s claim could take place within a few months.
The High Court noted that NHS England was willing to live with that relatively brief delay to the tendering process. The Court did not require the company to give an undertaking to pay damages to NHS England in the event that its claim ultimately failed.