MacRoberts Procurement Update 18/05/12
DRUGS CASE DISPENSED – SCOTTISH COURTS LOOK TO SPEED UP PROCUREMENT ACTIONS
In the case of Healthcare at Homes Limited against the Common Services Agency  CSOH 75, award decision letters were sent on 13th of May 2010 and a challenge was subsequently raised. However, it took just short of 2 years (1st of May 2012), for an ultimately unsuccessful bidder challenge to be rejected by the Court.
In comments at the end of his judgment, the judge noted the need to determine procurement challenges more speedily. The issue has been passed to the Court of Session's Consultative Committee on Commercial Actions. Contracting authorities and bidders alike - watch this space!!
Facts of the case
Healthcare at Homes Limited ("HAH") was unsuccessful in its bid to be appointed to the Common Services Agency ("the CSA") framework agreement for dispensing and delivery of the drug Herceptin. HAH sought an order under Regulation 47A(1)(b)(i) of the Public Contracts (Scotland) Regulations 2006 ("the Regulations") to set aside CSA's decision, arguing that the CSA had breached, on a number of counts, obligations on CSA to treat HAH equally and without discrimination and to act in a transparent and proportionate manner. HAH claimed, amongst other matters, that sections of the ITT lacked clarity, were inadequate or scored incorrectly.
The Court found that CSA had given HAH adequate information, commenting that:
"the obligation on the authority to give very precise and highly detailed descriptions of its requirements would both be very burdensome and also prevent tenderers from using their own initiative and experience to offer innovative approaches to meeting the authority's requirements."
"in assessing whether there has been adequate disclosure of a criterion or sub-criterion the court can ask whether the matter, which is alleged not to have been disclosed, would have been reasonably foreseeable by a reasonably well-informed and normally diligent tenderer as encompassed by that criterion or sub-criterion".
Of potential interest, the CSA had adopted a "silo" system of having different scorers, with different specialities, score different sections of the tender. HAH argued that the CSA had not made this approach sufficiently clear. They felt this was unfair as it meant that scorers had failed to regard material contained in a separate section.
The court found that CSA had given sufficient notice to tenderers of the use of the "silo" system and that it was implicit in such a system that scorers may not have regard to all sections of the bid, though the judge noted by way of postscript:
"It is easy with hindsight to identify further steps which can be taken to avoid unfortunate circumstances. One such step might be for CSA to state explicitly in its instructions to tenderers on the completion of tender documents that under its system its scorers will receive only the responses in relation to the sub-criteria which they are asked to mark and that they will have regard only to the content of the individual response when allocating a score to that response. Thus a matter which was implied can be made explicit."
Comment: this case emphasises the importance of a contracting authority: (i) setting out a clear procurement process from the start; (ii) following that process; (iii) making its decisions pursuant to clear and objective criteria and scoring mechanisms and (iv) ensuring that it is in a position to objectively justify scoring awarded by reference to the mechanisms set out. From a bidder's perspective, the case provides a useful insight into what may be recognisable to some as "common complaints" may end up being interpreted by the Courts.
For further information, please contact Julie Hamilton or Duncan Osler on 0131 229 5046.
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