Exel Europe Ltd v University Hospitals Coventry & Warwickshire NHS Trust (2010). The Technology and Construction Court heard this public procurement case which concerned an application made by an NHS Trust for an interim order to lift the automatic suspension upon the issue of proceedings by Exel Europe of a public procurement exercise. A tender process was carried out by the NHS Trust to transfer a collaborative procurement hub called the Healthcare Purchasing Consortium (HPC) to a private provider. Talks were initially held with HCA International Ltd (HCA) in which information was exchanged, the extent of which could not be ascertained by the court.
The Trust then advertised a framework agreement for the management and operation of the HPC to initiate the procurement process. Five tenderers including Exel and HCA were invited to tender. Excel raised concerns with the Trust that the information contained in the Invitation to Tender was insufficient and as a result withdrew from the process. None of the tenderers, bar one (HCA) submitted tenders. The Trust selected HCA as its proposed bidder.
Exel brought a claim against the Trust which automatically suspended the procurement process. It raised six issues, only one of which the court considered to be a serious issue to be tried under the American Cyanamid test: whether the prior negotiations between the Trust and HCA gave the latter an unfair advantage.
The court held that on the balance of convenience that the public interest in the efficient and economic running of the NHS had to be taken into account. It also found that damages could be an appropriate remedy for Exel and that whether or not it was successful in its claim, there would be delay which would engender uncertainty and impact upon the Trust’s desire to become a Foundation Trust hospital. As such the judge decided to bring the automatic suspension to an end.
This case highlights that the public interest is an important consideration for the court in deciding public procurement cases. Furthermore, it confirms that following the introduction of the new Remedies Regime, the courts’ approach to such applications will be to apply the American Cyanamid guidelines.