Check your scores before the Court does it for you - the importance of evaluating tenders carefully
Legal Development 25 August 2022 25 August 2022
UK & Europe
An interesting procurement law judgment in the recent case of Braceurself Limited v NHS England  EWHC 1532 (TCC) was handed down by the UK High Court in June 2022. This decision has reaffirmed the Court’s interventionist approach and willingness to re-score tenders where a contracting authority has made a manifest error during evaluation.
The claim, brought by Braceurself Limited (B), related to an NHS England (NHSE) procurement for the provision of orthodontic services in East Hampshire. B was the incumbent provider and one of only two bidders tendering for the seven-year contract. B’s tender was unsuccessful by a marginal score difference of 2.25% compared to the winning bidder. In earlier proceedings, the automatic suspension had been lifted and NHSE had been permitted to award the contract to its preferred bidder. B’s claim was therefore limited to one of damages, claimed in the sum of £4.7 million for loss of profit.
As part of proceedings, the Court examined NHSE’s evaluation and moderation of B’s tender and determined that manifest error had been made in its interpretation of a specific turn of words used in B’s response. The evidence put before the Court demonstrated that NHSE had downgraded one of B’s scores at moderation (from a score of a 4 to a 3) on the basis that it mistakenly believed B proposed a “stair lift” as part of its tender when it had, in fact, proposed a “stair climber”.
The Court was satisfied that this misinterpretation of B’s tender by NHSE meant that B was scored lower than it should have been. The Court decided that the misinterpretation amounted to “manifest error” in NHSE’s evaluation and consequently, re-scored B’s answer to the relevant question. Due to the question weightings, the re-scoring resulted in B receiving an overall weighted score that was 2.5% higher than the original preferred bidder, and so changing the outcome of the procurement
Although every procurement law case turns on its own facts, this case serves as another helpful reminder of the potential consequences of manifest errors in scoring. A Court will re-score a tender response where there has been manifest error in evaluation, after considering the margin of discretion afforded to the evaluators. However, it is not sufficient for a claimant to simply demonstrate that the Court should, or would, have reached a different view to the evaluators. It also emphasises the significant impact that one incorrect score can have on the result, where the difference in final weighted scores is marginal. A procurement outcome with a small margin between winner and second placed bidder is, of course, lawful, but it is sometimes easier for the disgruntled losing bidder to make up the difference through a detailed review of the procurement documents.
Additionally, this has the potential to highlight to defendant authorities, that obtaining a lift of the automatic suspension is not always as beneficial as it may first seem. Although the decision of whether the NHSE breach is “sufficiently serious” to justify an award of damages is yet to be made, if an award of damages is made to B, NHSE will be in the position where it must not only pay the original winning bidder in line with the seven-year contract, but must also pay B damages owed for loss of profit had B correctly been awarded the contract.