A number of interesting procurement cases have recently been decided which may be of note to both the public and the private sectors. In Turning Point Ltd v Norfolk County Council [2012] EWHC 2122, Turning Point had claimed a breach of the public procurement rules by way of failure to provide sufficient information in the tender documents. They brought the case more than 30 days after submission of tender, despite knowing the circumstances which gave rise to their claim at the time of submission. The Court held that there was no good reason to provide an extension of the 30-day limit and the case was struck out. The decision sheds some light on the circumstances in which a court may be prepared to extend the time limit provided for in the Public Procurement (Miscellaneous Amendments) Regulations 2011. Here the Court noted that, in order to obtain extension of the 30-day limit, "[a] good reason will normally be something which was beyond the control of the given Claimant; it could include significant illness or detention of relevant members of the tendering team".

Another case in which the pursuer was unsuccessful in claiming breach of the public procurement rules was that of Healthcare at Home Ltd v The Common Services Agency [2012] Scot CS CSOH 75. In this case, Healthcare at Home claimed that The Common Services Agency had failed to adhere to the principles of equality, non-discrimination, transparency and clarity, and had committed errors in respect of their evaluation. The Court dismissed all claims, holding that the Defender had given adequate reasoning for its decisions.

Following the dismissal, the Court did note that steps could be taken to avoid similar challenges from arising. Specifically it was suggested that certain implied matters could be made explicit to provide greater clarity for tenderers.  

In contrast to the above-mentioned cases, Clinton (t/a Oriel Training Services) v Department for Employment and Learning [2012] NIQB 2 brought success for Clinton in their claim arising from the procurement process of the Department for Employment and Learning. In this case, the Court held that there had been significant errors in the process – particularly that Clinton had not been given the opportunity to clarify and provide further information on any area of their bid (in direct contrast to thirteen other bidders in a similar position who had been given the opportunity). Clinton’s complaint of a contravention of the rules of competition was also successful. The challenged decision was set aside and expenses were awarded.

Finally, the case of Newcastle Upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust and Others [2012] EWHC 2093 (QB) saw an unusual situation in which public health service bodies came up against each other. In this case, the automatic suspension of the procurement process under Regulation 47G(1) of the Public Contracts Regulations was lifted, allowing four NHS PCTs to continue to enter into a diabetic retinopathy screening provision contract. In making its decision, the Court considered such factors as the type of service being provided, the adequacy of damages as a potential remedy and, on a practical level, the probable impact of a deferral on the patients (and service providers) involved. The decision, which has attracted significant attention, was made despite an ongoing challenge to the lawfulness of the procurement process giving rise to the awarding of the contract. No decision was made on the merits of this challenge.