BRACEURSELF LIMITED v NHS ENGLAND

In a procurement challenge, the court exercises a supervisory jurisdiction. It does not re-mark bids or substitute its own assessment for that of evaluators. Intervention requires a breach of transparency or equal treatment, or a manifest error sufficiently material to affect the result.

The transparency question is whether the tender documents would have been understood uniformly by a reasonably well-informed and normally diligent tenderer. A contracting authority has a context-sensitive margin of appreciation when evaluating bids. A straightforward factual misunderstanding of a bid is not protected by that margin where it materially affects the score.

Where the error is established and the court can reliably determine the proper score, it may re-score the bids rather than assess loss of chance.

The claimant, an incumbent orthodontic services provider, challenged NHS England’s award of a seven-year contract to another bidder under the Public Contracts Regulations 2015. The claimant alleged breaches of transparency and equal treatment, manifest errors in evaluation, and related failures concerning accessibility, opening days, emergency treatment and the contents of the successful bid.

The competition was closely fought. The court determined liability issues first. It considered whether the tender documents permitted reasonable adjustments for disabled patients involving limited access to radiographic facilities outside the lot area, whether the service specification required emergency treatment or five-day opening, and whether errors in evaluating the claimant’s accessibility proposal affected the outcome.

1. Transparency and equal treatment. The tender documents had to be assessed from the perspective of a reasonably well-informed and normally diligent tenderer. Read as a whole, they permitted a limited reasonable adjustment under the Equality Act 2010, including access to particular radiographic facilities outside the lot area where disability made the first-floor premises inaccessible. This was a permissible exception to the general geographical requirements. Both bidders were assessed on the same basis, so there was no breach of transparency or equal treatment.
2. Scope of the specification. The specification required urgent care, not emergency appointments. It imposed no specific number of opening days, provided the stated service requirements were met. The evaluators were not required to compare the bids with the incumbent’s existing five-day service or to use that provision as an evaluation criterion.
3. Manifest error. The court’s role was supervisory. It would not conduct a re-marking exercise merely because a different score might have been awarded. However, the evaluators materially misunderstood the claimant’s bid by treating a proposed stair climber as a stair lift and by assuming that alternative premises were offered routinely to patients with limited mobility. Those were straightforward factual errors, not matters protected by the margin of appreciation.
4. The errors affected the accessibility assessment in question CSD02. The contemporaneous evaluation material showed that accessibility was the principal reason the claimant received a score of 3 rather than 4. The court therefore found a material manifest error. Other complaints, including those concerning clinical governance, cancer auditing, underperforming colleagues and mobilisation, failed.
5. Relief. The court could reliably re-score the bid. The score for CSD02 increased to 4, raising the claimant’s total score by 2.5% and making it the successful bidder. A loss-of-chance assessment was unnecessary because this was a two-bid competition and the effect of re-scoring could be calculated arithmetically.
6. The claim was upheld only in respect of the CSD02 manifest error. The question whether the breach was sufficiently serious to justify Francovich damages was deferred for further submissions.

First-instance decision. No prior appellate decision is stated in the judgment.