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Council Slammed for Mishandling £104 Million Contract Tendering Exercise

Judges are on the alert to ensure that tendering for public contracts is conducted transparently and fairly. In one case concerning a contract for the provision of nursing services to young people – worth up to £104 million – the High Court intervened after a local authority fell signally below those standards.

Following a tendering exercise, the council awarded the contract to a private sector healthcare provider at the expense of two NHS trusts that had previously provided the relevant services. The trusts raised a number of complaints and challenged that outcome under the Public Contracts Regulations 2015.

In setting aside the award of the contract, the Court found that there had been no consistency in the way in which bids had been discussed by the council's marking panel. The council’s tendering guidelines – which stated that all evaluation documents and marks awarded would be fully documented and agreed by all members of the panel – had been entirely ignored.

The reality was that members of the panel had not been collectively shown notes of the marking process until after the trusts launched proceedings. When pressed for information by the trusts, the council had misled them by redacting certain dates and back-dating three of the individual panel members' evaluation notes.

The Court observed that to describe what happened, as the council did, as merely a regrettable episode of poor administration was an unacceptable understatement. The council’s reasoning process was so unclear that it was impossible for the Court to effectively exercise its supervisory powers or to discern whether the marking process had been infected by manifest error. The Court would hear further argument as to the relief that should be granted to the trusts consequent upon its ruling.

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