IN THE CASE OF BRACEURSELF V NHS ENGLAND [2022] EWHC 1532 (TCC), THE HIGH COURT EXAMINED THE MERITS OF A PROCUREMENT CHALLENGE IN RESPECT OF TENDER EVALUATION AND WAS PREPARED TO RE-SCORE THE CHALLENGER'S TENDER, CHANGING THE RESULT OF THE PROCUREMENT.

Facts

The case concerns the NHS's procurement of a seven-year contract for the provision of orthodontic services in East Hampshire. Braceurself was the incumbent provider and lost the competition to the only other bidder for this contract.

The outcome of the competition was extremely close, with Braceurself's bid scoring 80.25% and the successful bidder scoring 82.5%. Braceurself made a series of arguments that its scores should be increased and the successful bidder's decreased, and due to the closeness in scores, it would overcome the 2.25% gap simply by increasing its score on one question by one mark.

Decision

The Court decided that the score awarded for one question reflected a "manifest error" in NHS's evaluation as NHS referred to Braceurself's provision of a "stair lift" (in the context of building accessibility) when Braceurself had, in fact, proposed a "stair climber" (which is not the same as a stair lift). The Court found that NHS's misunderstanding of Braceurself's proposal meant that Braceurself was scored lower than it should have been had the NHS not misunderstood Braceurself's proposal.

As this was a "manifest error", rather than the result of a mere difference of opinion between the challenger and the evaluators, the Court re-scored Braceurself's answer to the question from 3 to 4, with the consequence that Braceurself's score should have been 2.5% higher; and, consequently, it should have been the successful bidder.

This case highlights the importance of the fundamental procurement law principle that evaluators must apply the scoring criteria in the procurement documents to tenders received, following careful consideration of what bidders have stated in their tender documents.

We always advise public bodies to ensure that their evaluation team is appropriately briefed on:

1) the key principles for lawful tender evaluation (including properly applying the scoring criteria from the procurement documents to the tenders);

2) the consequences of failing to evaluate properly (including potential damage to the public body in the event that the evaluation documents are required to be disclosed in the event of a challenge by an unsuccessful bidder and reveal a "manifest error"); and

3) more positively, that evaluators have a wide margin of discretion when applying evaluation criteria so should feel comfortable using the full scoring range.

In addition, the case reminds challengers that the Courts will only change a score where there has been a manifest error by an evaluator. This is consistent with existing caselaw and does not change the position that a challenger simply disagreeing with scores awarded is not sufficient to affect a change (see: Bechtel Limited v High Speed Two (HS2) Limited).