Abbvie Ltd v The NHS Commissioning Board (NHS England)

Abbvie Ltd v The NHS Commissioning Board (NHS England)

The DPM under RCM does not breach the equal treatment principle because MSD and AbbVie are not in comparable positions regarding MS2, and any differential treatment is objectively justified as a proportionate means of achieving legitimate aims including maximising competition, value, and health benefits. The fixed...

Source-derived case information.

Parties
Claimant: AbbVie Ltd; Defendant: NHS Commissioning Board (NHS England)
Jurisdiction
England and Wales
Judgment Date
18 January 2019
Procedural Posture
Judicial Review / Final Judgment
Outcome
Claim dismissed
Legal Topics
Equal Treatment Principle, Objective Justification, Procurement Evaluation Methodology, Contract Award Criteria, Remedies Under Public Contracts Regulations
Public Procurement Administrative Law EU Law Equal Treatment Principle Objective Justification Procurement Evaluation Methodology Contract Award Criteria Remedies Under Public Contracts Regulations

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Parties

AbbVie Ltd

Claimant

NHS Commissioning Board (NHS England)

Defendant

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the Dummy Price Mechanism (DPM) under the Revenue Capped Model (RCM) breaches the duty of equal treatment under Regulation 18(1) of the Public Contracts Regulations 2015 (PCR)
  2. 2 Whether the fixed fee provisions under the Unmetered Access Model (UAM) breach the duty of equal treatment
  3. 3 Whether any breach is objectively justified as a proportionate means of achieving a legitimate aim

Ratio Decidendi

The DPM under RCM does not breach the equal treatment principle because MSD and AbbVie are not in comparable positions regarding MS2, and any differential treatment is objectively justified as a proportionate means of achieving legitimate aims including maximising competition, value, and health benefits. The fixed fee provisions under UAM do not breach equal treatment as all suppliers are subject to the same rules in a comparable position, and mechanisms exist to prevent unrealistic bids. Even if unequal treatment were found, both mechanisms are objectively justified.

Court Disposition

Claim dismissed