Accessible Orthodontics (O) Ltd v National Health Service Commissioning Board

JurisdictionEngland & Wales
JudgeMr Roger ter Haar
Judgment Date21 April 2020
Neutral Citation[2020] EWHC 785 (TCC)
Date21 April 2020
Docket NumberCase No: HT-2018-000296
CourtQueen's Bench Division (Technology and Construction Court)

[2020] EWHC 785 (TCC)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

TECHNOLOGY AND CONSTRUCTION COURT (QBD)

The Rolls Building

Fetter Lane, London, EC4A 1NL

Before:

Mr Roger Ter Haar QC

Sitting as a Deputy High Court Judge

Case No: HT-2018-000296

Case No. HT-2018-000355

Between:
Accessible Orthodontics (O) Limited
Claimant
and
National Health Service Commissioning Board
Defendant
Accessible Orthodontics LLP
Claimant
and
National Health Service Commissioning Board
Defendant

Christopher Lundie (instructed by Shakespeare Martineau LLP) for the Claimants in both actions

Simon Taylor (instructed by Blake Morgan) for the Defendant

Hearing dates: 27 March and 2 April 2020

Approved Judgment

Mr Roger ter Haar QC:

1

On 27 March 2020 I held a Case Management Conference in these two cases. Because of the current restrictions imposed by H M Government in response to the health emergency the hearing had to be conducted over the telephone.

2

This was not ideal, but with considerable hard work by all concerned it was made to work. However, Mr. Lundie, counsel for the Claimant in each of these two actions, experienced some technical problems which partially interrupted the proceedings. In the event it was not possible to complete all the necessary business. I decided that I would issue my decisions on two important issues, permission to amend and disclosure, then reconvene the hearing at a time convenient to the parties and the Court. I issued an earlier draft of this judgment containing my decision on those two issues. This judgment is issued following a further hearing on 2 April 2020. In part it varies the decision which I made in respect of disclosure.

3

I would like to thank the parties and their representatives for their co-operation which made both the hearings possible.

4

These proceedings concern two challenges made to awards made pursuant to two procurement processes run by the NHS for the provision of NHS orthodontic referral services. The tendering process, award criteria and issues arising are largely the same in both cases. By a consent order made on 8 February 2019, the proceedings are to be case managed and tried together.

5

The details of the two claims are as follows:

(1) In the first claim the Claimant is Accessible Orthodontics (O) Limited (“AO Ltd”). The case number is HT-2018-000296 and the procurement relates to the lots for Oxford City 1 & 2 (SC16 and 32);

(2) In the second claim the Claimant is Accessible Orthodontics LLP (“AO LLP”). The case number is HT-2018-000355 and the procurement relates to the lot for Thame (SC11).

6

In each case the Claimant is a small orthodontic service provider. Dr. Alan Davey is the incumbent provider of the services in the Oxford City lots and he is a shareholder in AO Ltd (of which Dr. Davey is a member). Dr. Davey was unable to tender as a sole trader and so tendered through AO Ltd. AO LLP, of which Dr Davey is a member, is the incumbent provider of the services in Thame.

7

The NHS contracts which were the subject of the procurement exercises were for a 7 year period which was meant to start on 1 April 2019.

8

The NHS informed AO Ltd that it was unsuccessful in SC16 and 32 by ‘standstill’ letters dated 4 September 2018. The successful bidder scored 80.25% whereas AO Ltd scored only 47.75%.

9

The NHS informed AO LLP that it was unsuccessful in SC11 by ‘standstill’ letter of 22 October 2018. The successful bidder scored 65.25% whereas AO LLP scored only 44.75%.

10

Feedback was provided by the NHS to the Claimants on the reasons for the Claimants' scores and the characteristics and relative advantages of the successful bidder in each of the ‘standstill’ letters.

11

AO Ltd issued the first claim on 27 September 2018 and served the Particulars of Claim on 2 October 2018. AO LLP issued the second claim on 14 November 2018 and served the Particulars of Claim on or about 19 November 2018.

12

The Particulars of Claim in both claims alleged breaches of the Public Contract Regulations 2015 (“ PCR 2015”) and manifest errors in the scoring of the Claimants' bids. The appendices particularise the scoring allegations in some detail. No allegations were made about the scoring of the successful bidder's bid or any other bidder's bid. The Claimants seek to set aside the award decisions amongst other relief.

13

The Defences to the claims were served on 12 November 2018 and 16 January 2019 respectively. The Defences denied the allegations and pointed out among other things that the claims lacked any case on causation given the wide disparity in scores between successful bidders and Claimants and the lack of any pleaded case as to how the allegations if made out entitled the Claimants to the relief claimed.

14

The parties have since sought to engage in alternative dispute resolution but have failed to settle the claims. The automatic suspensions remain in place and the services which are the subject-matter of the procurements are currently being provided by the Claimants or Claimant group entities as incumbents further to extension contracts.

The procurement regime

15

These NHS contracts, which were public contracts for social and other services, fell within the “light touch regime” in regulations 74 to 77 of PCR 2015. It is the Claimants' case that the NHS were permitted to determine the applicable procedure provided that the procedure chosen was at least sufficient to ensure compliance with the principles of transparency and equal treatment required by regulations 18 and 76(2) of PCR 2015. The NHS elected to use a dynamic purchasing system and set the award and evaluation criteria.

16

The challenges by AO Ltd and AO LLP to the awards made as a result of the procurement exercise are based on essentially the same grounds – breach of the obligation to act in a transparent manner, breach of the obligation to treat tenders equally and manifest error. Mr. Lundie submits that as is often the case in these types of claim, the information available for the purpose of settling the Particulars of Claim was somewhat limited. He says that the NHS provided disclosure of some additional documentation in September 2019, having previously submitted that documentation on a without prejudice basis in June 2018, and that this has enabled the claims to be formulated with a greater degree of focus and the nature of the problem with the tender process to be better identified.

The Application to Amend

17

The Claimants' application to amend their respective pleadings was served and filed on 2 March 2020.

18

The majority of the amendments for which permission is sought relate to new matters that arise from the disclosure of evaluator and moderation notes relating to the scoring of the Claimants' bids and certain training materials made available by NHSE in June 2019. The NHS submits that these amendments give rise to potential limitation issues given that they were not made within 30 days of the Claimants being first aware of the facts to which they plead.

19

However, the NHS accepts that they do not have wider implications to the conduct of proceedings and disclosure process in particular. Given also the limited time available to the Court and the need to progress associated case management matters, the NHS has given its consent to those pleadings which relate to the Claimants' bids without prejudice to its right to plead limitation points in its Amended Defence and on the basis that the amendments will take effect at the date of the Order. This was communicated to the Claimants by the NHS's solicitors on 24 March 2020.

20

This category of agreed amendments covers all amendments to the first claim and all those relating to the second claim save for paragraph 19.5 and paragraphs 3.11, 4.11, 5.14, 6.11 and 8.11 of the Appendix to the second claim.

The Disputed Amendments

21

The NHS opposes amendments comprising the new paragraph 19.5 and paragraphs 3.11, 4.11, 5.14, 6.11 and 8.11 of the Appendix to the second claim. The new paragraph 19.5 states: “These errors were not limited to consideration of the Claimant's tender but extend to the evaluation of other tenders which...

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