BRACEURSELF LIMITED v NHS ENGLAND

BRACEURSELF LIMITED v NHS ENGLAND

The defendant made a manifest error in marking the claimant's bid for accessibility (CSD02) due to a misunderstanding of the proposed stair climber, which materially affected the outcome of the procurement. Otherwise, the procurement process was transparent, both bidders were treated equally, and arrangements for disabled access outside the Lot area were permissible as reasonable adjustments. No other manifest errors or breaches of transparency or equal treatment were established.

Parties
Claimant: Braceurself Limited; Defendant: NHS England
Jurisdiction
England and Wales
Judgment Date
20 June 2022
Procedural Posture
Civil Procurement Claim (damages) / Judgment After Split Trial on Liability
Outcome
Claim allowed in part (manifest error in marking claimant's bid for accessibility); all other claims dismissed; determination of Francovich damages adjourned for further submissions.
Legal Topics
Public Contracts Regulations 2015, Equality Act 2010, Tender Evaluation, Manifest Error, Transparency, Equal Treatment, Francovich Damages
Public Procurement Administrative Law Public Contracts Regulations 2015 Equality Act 2010 Tender Evaluation Manifest Error Transparency Equal Treatment +1 more

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Parties

Braceurself Limited

Claimant

NHS England

Defendant

Procedural Posture

Civil Procurement Claim (damages) / Judgment After Split Trial on Liability

Legal Issues

  1. 1 Whether the defendant breached the Public Contracts Regulations 2015 in the procurement process for orthodontic services by lack of transparency, unequal treatment, or manifest error; whether the defendant's evaluation of bids was manifestly erroneous; whether arrangements for disabled access outside the Lot area were permissible under the tender; whether any breach was sufficiently serious for Francovich damages.

Ratio Decidendi

The defendant made a manifest error in marking the claimant's bid for accessibility (CSD02) due to a misunderstanding of the proposed stair climber, which materially affected the outcome of the procurement. Otherwise, the procurement process was transparent, both bidders were treated equally, and arrangements for disabled access outside the Lot area were permissible as reasonable adjustments. No other manifest errors or breaches of transparency or equal treatment were established.

Court Disposition

Claim allowed in part (manifest error in marking claimant's bid for accessibility); all other claims dismissed; determination of Francovich damages adjourned for further submissions.

Orders

  • The claimant's score for CSD02 is increased to 4, resulting in a total bid score 2.5% higher, which would have made it the successful bidder.
  • All consequential matters, including the issue of sufficiently serious breach for Francovich damages, are adjourned pending further submissions.