Perinatal Institute v Healthcare Quality Improvement Partnership

In an application to lift the automatic suspension of a public procurement contract award, the court applied an approach akin to American Cyanamid. The threshold for a serious issue to be tried was low. For adequacy of damages, the question was whether it was just in all the circumstances to confine the claimant to damages. A claimant’s non-profit status was relevant but did not create an absolute rule that damages were inadequate. The court also weighed the strength of the procurement challenge against the competing public interests in lawful procurement and prompt delivery of the healthcare project. The automatic suspension was lifted.

Healthcare Quality Improvement Partnership procured a national project for standardised perinatal mortality reviews. Perinatal Institute challenged the evaluation of tenders, including the treatment of patient consent and section 251 approval under the National Health Service Act 2006, and the composition of the evaluation panel. HQIP applied under regulation 96(1)(a) of the Public Contracts Regulations 2015 to lift the automatic suspension imposed under regulation 95(1).

The central questions were whether there was a serious issue to be tried, whether damages would be an adequate remedy, and, if not, where the balance of convenience lay.

1. Serious issue to be tried. The application was governed by principles akin to those in American Cyanamid. The threshold was low. PI’s complaints about the interaction between the tender specification, patient consent, section 251 approval and the duty of candour raised arguable issues as to the evaluation process and were not shown to be time-barred or misconceived. The complaint about the panel’s technical expertise also raised an arguable issue. The court was not required at this stage to decide the merits or substitute its own evaluation for that of the contracting authority.
2. Scoring. Although success on the challenge to one scoring item would not alone have changed the result, PI relied on several complaints. The court therefore could not conclude that the challenge disclosed no serious issue merely by considering the limited effect of that item.
3. Adequacy of damages. The relevant question was whether it was just in all the circumstances to confine PI to damages. The fact that a claimant is non-profit-making was relevant, but did not establish an absolute rule. PI could recover tender costs and a contribution to overheads, and there was no evidence of comparable disruption or reputational harm. Damages were adequate.
4. Balance of convenience. In any event, the balance favoured lifting the suspension. The court weighed the strength of PI’s challenge against the public interest in prompt implementation of a project intended to improve perinatal mortality review and reduce avoidable deaths. The likely delay from an expedited trial, appeal or re-tendering weighed heavily against maintaining the suspension. HQIP’s application succeeded, and the automatic suspension was lifted. Further submissions on the form of order and costs were reserved.

First-instance decision. The judgment records no prior appellate decision.