BRACEURSELF LIMITED v NHS ENGLAND

The claimant challenged the award of an NHS orthodontic services contract under the Public Contracts Regulations 2015 on grounds of lack of transparency, unequal treatment and manifest error in evaluation. The court applied the established procurement principles (including the reasonably well-informed and normally diligent tenderer test from Healthcare at Home and the high threshold for "manifest error").

The judge found no breach of transparency or equal treatment in allowing a bidder to make reasonable adjustments under the Equality Act 2010 by arranging, in limited circumstances, for specific radiographs to be obtained outside the Lot area. Most complaints about undisclosed award criteria, emergency provision and differential treatment were rejected. However, a manifest error was found in the evaluation of the claimant’s response to the premises and equipment question (CSD02) because evaluators misunderstood the claimant’s accessibility solution (they treated a proposed mobile stair climber as a fixed stair lift and made related incorrect assumptions about alternative premises). That misunderstanding materially affected the moderated score and, on re-scoring, would have made the claimant the successful bidder. The court deferred the separate Francovich damages (sufficiently serious breach) issue for further written and, if necessary, oral submissions.

Background and relief sought:

• The claimant, the incumbent provider, brought a Part 7 claim under the Public Contracts Regulations 2015 after losing a seven-year orthodontic services Lot (WSX18). The claimant initially sought to set aside the award but later amended to claim damages of £4.7m (loss of profit), bid costs and goodwill losses. The trial before a deputy High Court judge was a split trial ordered by Fraser J: this hearing determined liability issues including seriousness of any breach.

Procedural posture and issues:

• The liability trial addressed a closed list of issues agreed between the parties (set out in a List of Issues appended to the judgment). Key issues included whether the procurement documents permitted bidders to provide certain radiographic services outside the Lot area as a reasonable adjustment under the Equality Act 2010; whether the authority breached duties of transparency and equal treatment; and whether there were manifest errors in the evaluation of particular quality questions (notably CSD01, CSD02, CG01, CG02 and MP02).

Evidence and evaluative framework:

• The court summarised applicable law under the Public Contracts Regulations (Regulation 18 equality of treatment, Regulation 89 transparency obligations, Regulation 91 right to damages and Regulation 98 remedies) and the RWIND tenderer standard from Healthcare at Home. The court emphasised the high threshold to establish a manifest error, recognising the evaluator margin of appreciation and institutional competence of subject-matter experts.

Key factual findings and reasoning:

• The Service Specification required equitable and accessible services and compliance with equality legislation, and envisaged hub-and-spoke arrangements for radiography. Both bidders proposed first-floor premises; each proposed solutions for patients unable to access first-floor surgery: the claimant proposed a mobile stair climber; the successful bidder proposed use of a ground-floor buddy practice within the Lot area but, for certain radiographs (OPG/lateral cephalometric), an arranged taxi to a sister practice in Winchester (outside the Lot area).
• The court held a RWIND tenderer would have understood that, where a patient’s disability prevented access to premises, a reasonable adjustment under the Equality Act could permissibly involve taking a limited element of care (specific radiographs) outside the Lot area; that did not breach transparency or equal treatment.
• The court rejected almost all alleged evaluation errors, finding the evaluators careful, trained and entitled to assess bids on the record. The one exception was CSD02: evaluators had misunderstood the claimant’s bid by treating its proposed item as a fixed stair lift (instead of a mobile stair climber) and had also misread an alternative-premises comment. Those factual misunderstandings were material to the moderated score and produced a manifest error in the claimant’s CSD02 score.
• The judge concluded the court could reliably re-score the bids. Re-scoring CSD02 to reflect the correct understanding would have increased the claimant’s overall score by 2.5% and would have made the claimant the successful bidder.

Disposition and further steps:

• The claim was upheld in the single respect described above (manifest error in CSD02 and consequent re-scoring). The court did not decide the separate question whether breaches were "sufficiently serious" for Francovich damages (Issue 23) and directed further written submissions and a short hearing if required.

The claim was allowed in part. The court rejected allegations of undisclosed award criteria, breaches of transparency and unequal treatment in almost all respects but found a manifest error in the evaluation of the claimant’s CSD02 answer caused by a factual misunderstanding (stair climber v stair lift and related assumptions). Re-scoring CSD02 would have made the claimant the winning bidder. The court deferred determination of whether the breach is "sufficiently serious" to justify Francovich damages for further submissions.