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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Consultant Connect Ltd v NHS Bath and North East Somerset, Swindon and Wiltshire Integrated Care Board & Ors [2022] EWHC 2037 (TCC) (29 July 2022) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2022/2037.html Cite as: [2022] EWHC 2037 (TCC) |
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Neutral Citation Number: [2022] EWHC 2037 (TCC)
Case No: HT-2021-000154
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN’S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Date: 29/07/2022
Before :
MR JUSTICE KERR
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Between :
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CONSULTANT CONNECT LIMITED |
Claimant |
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(1) NHS BATH AND NORTH EAST SOMERSET, SWINDON AND WILTSHIRE INTEGRATED CARE BOARD
(2) NHS GLOUCESTERSHIRE INTEGRATED CARE BOARD
(3) NHS BRISTOL, NORTH SOMERSET AND SOUTH GLOUCESTERSHIRE INTEGRATED CARE BOARD |
Defendants |
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- and - MONMEDICAL LIMITED (t/a Cinapsis) |
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Interested Party |
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Joseph Barrett and Raphael Hogarth (instructed by Eversheds Sutherland (International) LLP) for the Claimant
Sarah Hannaford QC and Ewan West (instructed by DAC Beachcroft Claims Ltd) for the Defendants
The Interested Party did not appear and was not represented
Hearing dates: 8, 9, 13, 14, 15 June 2022
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Judgment Approved
This judgment was handed down remotely by circulation to the parties' representatives by email and will be released for publication on the National Archives caselaw website. The date and time for hand-down is 10am on 29 July 2022. I direct that no official shorthand note shall be taken of this Judgment and that copies of this handed down version may be treated as authentic.
Mr Justice Kerr :
Introduction and Summary
The Facts
“[c]alls must generate a Post Event Message (PEM) an interoperable message that can additionally be rendered as a PDF / HTML or similar capability.”
“Calls must generate a Post Event Message (PEM) an interoperable message that can additionally be rendered as a PDF / HTML or similar capability.”
“[j]ust to keep you updated, we are still very much in the review stage of the A&G provision, but due to mass vac[cination] rollout and resource becoming a little scarce, we need some more time to plot our way forward”.
“… we are still refining a specification for A&G services across [NHS Bath], so our procurement route and plans are not yet fully understood / defined and commitment beyond July is all we can / are willing to commit to at present.”
The First Issue
Was CC at the relevant time an economic operator in relation to the award of the A&G contract to Cinapsis?
The Second Issue
Did CC at the relevant time offer services on the relevant market and/or have an interest in the A&G contract and/or have standing to bring a claim under the PCR 2015?
The Third Issue
Did the defendants’ decisions breach the Regulations, including but not limited to regulations 18, 26 and/or 33 and the duties of transparency and equal treatment because of some or all of the matters pleaded in paragraphs 24 and 25 of the amended particulars of claim?
“(1) Before commencing a procurement procedure, contracting authorities may conduct market consultations with a view to preparing the procurement and informing economic operators of their procurement plans and requirements.
(2) For this purpose, contracting authorities may, for example, seek or accept advice from independent experts or authorities or from market participants.
(3) Such advice may be used in the planning and conduct of the procurement procedure, provided that it does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency.”
“implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner, to make it possible for all reasonably informed tenderers exercising ordinary care to understand their exact significance and interpret them in the same way, and to circumscribe the contracting authority’s discretion and enable it to ascertain effectively whether the tenders submitted satisfy the criteria applying to the relevant procedure … .”
“does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency”.
The Fourth Issue
Was the statement of reasons provided by the defendants (i) erroneous, non-transparent and unlawful, and/or (ii) did the defendants fail to provide any lawful, transparent statement of reasons in respect of the relevant decisions?
The Fifth Issue
Did the defendants’ decision to use the CCT framework to effect the direct award of the A&G contract to Cinapsis breach regulations 18(2) and (3) of the Regulations and/or the duties of transparency and equal treatment, in that the design of the procurement was made with the intention of artificially narrowing competition and/or the intention of unduly favouring or disadvantaging certain economic operators?
“… the acquisition by means of a public contract of works, supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose”.
The Sixth Issue
Was the process by which the defendants awarded the A&G contract to Cinapsis under the CCT framework unlawful and in breach of the requirements of regulation 33 and/or the duties of transparency and equal treatment?
The Seventh Issue
Was the award and/or the defendants’ decisions relating to the A&G contract award made in breach of the requirements of regulation 24 and/or vitiated by apparent bias and/or in breach of the duties of transparency and equal treatment?
The Eighth Issue
Insofar as any breaches of duty are established, did those breaches (whether individually or together) cause CC to suffer or risk suffering loss or damage?
The Ninth Issue
If so, what remedy or remedies should be granted by the court?
The Tenth Issue
If and in so far as CC lost the chance of participating in a procurement for the provision of the services obtained under the A&G contract, what was the extent of that loss of chance?
The Eleventh Issue
Was any breach (if established) sufficiently serious to give rise to an entitlement to damages?
Concluding Observations
[1] From 1 July 2022, between the trial and the draft judgment, the relevant rights and liabilities of the CCGs were transferred to Integrated Care Boards (ICBs) covering the same geographical areas as the CCGs. pursuant to the Integrated Care Boards (Establishment) Order 2022 and the National Health Service Clinical Commissioning Groups (Transfer of Staff, Property, Rights and Liabilities to Integrated Care Boards) Scheme 2022. Before handing down the judgment, I granted an application made on 22 July (the date the draft judgment was sent to the parties) to substitute the ICBs for the CCGs. For convenience, I refer to them in the judgment as the CCGs, as they were at the relevant times.