Adferiad Recovery Ltd v Aneurin Bevan University Health Board
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 16 November 2021 |
| Neutral Citation | [2021] EWHC 3049 (TCC) |
| Docket Number | Case No: HT-2021-CDF-000002 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 3049 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
HIS HONOUR JUDGE Keyser QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: HT-2021-CDF-000002
Rhodri Williams Q.C. (instructed by Watkins and Gunn) for the Claimant
Jorren Knibbe (instructed by NWSSP Legal and Risk Services) for the Defendant
Hearing dates: 18 and 19 October 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Keyser QC
JUDGE Keyser QC:
Introduction
In these proceedings the claimant claims relief for what it alleges are the defendant's breaches of public procurement law. It relies on three bases of claim: (1) a right of action pursuant to regulations 89 and 91 of the Public Contracts Regulations 2015, as amended (“the 2015 Regulations”); (2) principles of retained EU law; (3) breach of a contract as to the conduct of the procurement.
This is my judgment upon the defendant's application dated 10 September 2021 for summary judgment on the claim under CPR r. 24.2 or for an order striking out the claim pursuant to r. 3.4(2)(a).
The law relating to applications under r. 24.2 and r. 3.4 is familiar; it has been set out many times in the case-law, and I shall not set it out again. For no better reason than convenience, I refer to my own recent summary in Maranello Rosso Limited v Lohomij BV and others [2021] EWHC 2452 (Ch) at [16]–[25] and to the cases mentioned there. I also have regard to the observations of Stuart-Smith J, in the context of public procurement, in MSI-Defence Systems Limited v Secretary of State for Defence [2020] EWHC 1664 (TCC) at [5]–[8]; however, no special or different principles apply in public procurement cases.
In the present case, the defendant contends that the court has the relevant materials to enable it to hold now that the various bases of claim advanced by the claimant are bad as a matter of law. It contends, accordingly, that no part of the claim has a real prospect of success and that there is no other reason why it should be permitted to proceed to trial.
The application was heard over two days by Cloud Video Platform. I am grateful to Mr Jorren Knibbe and Mr Rhodri Williams QC, counsel respectively for the defendant and the claimant, for their detailed and focused submissions. In the remainder of this judgment I shall first set out the material facts, citing extensively from the relevant documents, and then consider in turn the issues that arise on the application in respect of the three bases of the claimant's claim.
The facts
The parties
The defendant is the local health board responsible for the provision of health and social care services under the National Health Service (Wales) Act 2006 in the local health board area comprising Blaenau Gwent, Caerphilly, Monmouthshire, Newport, Torfaen and South Powys (the “ABUHB Area”).
The claimant is a registered charity that provides services for people in England and Wales with mental health problems, substance misuse problems and co-occurring and complex needs. In fact, it was not the claimant but a similar charity, Hafal, that tendered in the procurement to which these proceedings relate. But, at least for the purposes of this application, the defendant now accepts that by reason of a merger on 1 April 2021 the claimant acquired the rights and liabilities of Hafal and that it is entitled to bring these proceedings. I shall make no further reference to Hafal and shall proceed on the basis that anything it did was done by the claimant.
Before the Procurement
On 2 December 2020 the defendant sent a notice (the “Event Notice”) by email to potential providers, advertising its intention to hold a “Gwent Sanctuary Engagement Event” (the “Engagement Event”) by a meeting on Microsoft Teams on 10 December 2020. The Event Notice stated:
“Aneurin Bevan University Health Board are proposing a 1 year pilot Sanctuary service for people in Gwent experiencing a personal crisis or episode of emotional distress.
The proposed service would be for anyone over the age of 18 who is experiencing a personal crisis or episode of emotional distress but who does not require a clinical mental health assessment or intervention from existing service providers. The sanctuary is therefore aiming to provide a pre-crisis or early intervention service that may prevent some people going on to develop more serious conditions.
The Health Board is looking to engage potential providers in a virtual Teams event to discuss the proposal and to gain their feedback.”
Representatives of the claimant attended at the Engagement Event, at which the defendant gave two presentations: the first outlined its proposals for the planned service (the “Sanctuary Service”), and the second concerned the planned procurement process. Each presentation included the display of a set of slides.
The first presentation began with a slide headed “Strategic Context”, which included the text: “Together for Mental Health 10 year strategy – 3 year Delivery Plan”. There followed a slide headed “Our Vision”, which said that the defendant's vision was to provide:
“High quality, compassionate, person-centred mental health and learning disability services, striving for excellent outcomes for the people of Gwent.”
A slide headed “Transforming Adult Mental Health Services in Gwent” showed a diagram portraying a “whole ‘Clinical Futures’ approach for adult mental health services in Gwent”. This involved a progression of stages: (i) Staying Healthy (which included “sanctuary”); (ii) Care Closer to Home (including, among other things, GP, Primary Care Mental Health Services, and Crisis Assessment); (iii) Individuals requiring Admission for mental health or learning disability issues; and (iv) Specialist Inpatient (including secure units). Another slide stated the “Key principles of sanctuary”:
“• Support to an individual to respond to their emotional or life crisis & find own solutions
• Safe space for people outside of normal working hours
• Non clinical, homely environment
• Staffed by third sector
• Work in partnership with other services to liaise, sign post and broker support.”
The scope and limitations of the Sanctuary Service were set out in some further slides:
“ Proposed Model
• 12 months test of change/pilot
• For adults experiencing emotional/life crisis
• Operated from physical building which is Covid-19 compliant
• Opening ?6–9pm – 3am Thurs/Fri/Sat/Sun
• Self-referral or professional referral via phone with triage in place
• Availability of 121 support
• Communal areas
• Facilities to provide food/showers
• Transport
• Recovery plans
• Onward referral with follow up
• Presence of peer mentors / peer support workers
• Building close to transport links etc”
“ Not in proposed model
• Not a place of safety
• No accommodation i.e. beds
• No clinical expertise will be on site
• Can't accept an individual under the influence of alcohol and/or drugs if deemed that they won't benefit from the service
• Not a drop-in”.
The second presentation, which was given by Mr Jack Robinson, a Procurement Business Manager within the NHS Wales Shared Services Partnership (“NWSSP”), included a slide that set out the indicative procurement timetable. All that need be noted here is that, after notification of the award decision on 18 February 2021, there was to be a “Voluntary Standstill Period” until 1 March 2021.
The Procurement
On 5 March 2021 the defendant commenced a procurement exercise (“the Procurement”) for the award of a contract for the provision of the Sanctuary Service within the ABUHB Area by publishing a Contract Notice on the Sell2Wales website. The Procurement was conducted by NWSSP on behalf of the defendant and, after publication of the Contract Notice, was conducted using the eTenderWales online portal (the “Portal”).
It is common ground that the correct detailed description of the required services was set out not in the Contract Notice but in the Sanctuary Provision Service Specification (the “Service Specification”) that was provided as Appendix A to the Invitation to Tender (see below). However, section 2.2 of the Contract Notice gave the following overview of the Sanctuary Service:
“The Sanctuary Service will provide a non accommodation based ‘safe space’ for people and will operate out of hours. It will support people experiencing a personal, emotional or early stage mental health crisis in the community with access to information, advice and assistance and a range of other support mechanisms with an emphasis on early intervention and prevention. This covers a broad spectrum of need and the Sanctuary System will bridge a significant gap in primary and secondary care mental health provision by providing a non-clinical, recovery led service, alongside more traditional routes and services.”
Section 2.3 of the Contract Notice set out “Commodity Codes” as follows:
• 85000000 Health and social work services
• 85100000 Health Services
• 85144000 Residential health facilities services
• 85323000 Community health services.
The defendant accepts that Code 85144000, “Residential health facilities services”, was included incorrectly, because the Sanctuary Service did not involve any accommodation element. I shall say more about the Codes and explain their significance later.
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