Medicure Ltd v The Minister for the Cabinet Office

A procurement framework for locum doctors may lawfully provide for both direct supply from a supplier’s own resource pool and supplementary supply managed through sub-contractors. Tender documents must be read as a whole, and a contracting authority may assess a bidder’s experience of supply-chain management where that forms part of the services. A challenge to a refused tender must be brought within 30 days of knowledge of facts indicating an infringement. A framework is not varied merely because it is operated in a way already contemplated by its terms. Responsibility for the conduct of call-off competitions ordinarily rests with the relevant contracting body where the framework so provides.

The claimant had unsuccessfully bid for a framework agreement for the supply of locum doctors under Lot 2, concerning resource-pool management. It later obtained a framework agreement through the Avoca consortium but was not called upon to supply doctors.

The claimant alleged that the procurement documents and framework agreement permitted only managed or indirect supply, not direct supply from a supplier’s own resources. It alleged that the defendant had therefore varied or permitted the improper use of the framework, and that the tender process had been unfair and insufficiently transparent. The issues were whether the tender challenge was valid and in time, how the framework was to be construed, and whether it had been varied or improperly used.

1. The claim was dismissed. The tender documents, including the OJEU Notice and PQQ, contemplated both direct supply by suppliers of locum doctors registered with them and the management of supplementary supply from other employment businesses. The express prohibition on direct supply in Lot 1 was absent from Lot 2. The claimant’s contrary assumption was therefore misconceived.
2. The defendant was entitled, and indeed obliged, to test bidders’ ability to manage sub-contractors because managed services formed part of Lot 2. The criterion in PQQ question E17(ii) was proportionate and transparent. The claimant’s failure was not attributable solely to that criterion: it also received a low score for E16 and nil scores on other components of E17.
3. Applying the approach in Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, any tender challenge had to be brought within 30 days of knowledge of facts indicating an infringement. The claimant knew the relevant reasons by August 2012 but did not commence proceedings until January 2014. The challenge was consequently out of time in any event.
4. The framework agreement itself expressly permitted direct supply, supplementary supply, or both. The operation complained of was therefore not a variation. It was unnecessary to consider Pressetext Case C-454/06 Pressetext [2008] ECR 1-4401. There was also no evidence that the defendant had instructed contracting bodies to operate the framework unlawfully.
5. Any improper use of the framework would, on the pleaded facts, have been conduct by customers under individual call-off contracts. The framework made those contracting bodies independently responsible and excluded the defendant’s responsibility for such matters. The claimant therefore had no cause of action against the defendant on that basis.