CONSULTANT CONNECT LIMITED v NHS BATH AND NORTH EAST SOMERSET, SWINDON AND WILTSHIRE INTEGRATED CARE BOARD & Ors

A contracting authority may use a framework agreement, but must operate it transparently and equally. A mini-competition requires a genuine opportunity for more than one framework member to compete. Inviting only one bidder is not cured because that bidder is unaware that it has no rival.

Framework call-off terms may be more precisely formulated, but cannot substantially depart from the framework’s pricing or other governing terms. Market consultation is lawful only if it does not distort competition or breach transparency and equal treatment. A non-member of the framework is not legally barred from challenging an unlawful award; the issue is whether breach caused, or risked causing, loss.

Consultant Connect supplied advice and guidance communications services to NHS bodies, including hospitals within NHS Bath’s area. The defendant clinical commissioning groups used the Clinical Communication Tools framework to procure a regional service and awarded the contract to Cinapsis, the incumbent provider to NHS Gloucestershire.

Consultant Connect was not a framework member and was not invited to the subsequent mini-competition. It challenged the procurement under the Public Contracts Regulations 2015, alleging non-transparent market testing, unequal treatment, conflicts of interest, unlawful use of the framework, an impermissible pricing departure and loss of a chance to win the contract.

The principal issues concerned economic-operator status, actionable loss, the legality of the procurement process, remedies and damages.

1. Status and standing. Consultant Connect was an economic operator offering relevant services on the market. Framework non-membership was not a legal bar to a claim. The questions were whether a duty was breached and whether the claimant suffered, or risked suffering, loss in consequence.
2. Market consultation and transparency. The demonstrations and scoring exercise were objectively part of the procurement, not merely market consultation. The undisclosed criteria, prior presentation favouring Cinapsis, confidential disclosure of Consultant Connect’s material and assistance given to Cinapsis distorted competition and breached transparency and equal treatment.
3. Framework operation. The specification fell within the broad scope of the framework and was a permissible refinement in that respect. However, the mini-competition was not genuine because only Cinapsis was invited. A competition may leave one bidder after others withdraw, but the authority cannot invite only one framework member while excluding the others. The agreed enterprise-licence pricing substantially departed from the framework’s user-band pricing and was not a permitted refinement.
4. Artificial narrowing and conflicts. The procurement was designed to favour Cinapsis and disadvantage other economic operators, contrary to regulations 18(2) and (3). Mr Turp, Dr Gerald and Dr Mantri had relevant conflicts or interests compromising impartiality. The defendants took no appropriate measures under regulation 24.
5. Loss and remedy. A fair competition would probably have involved Consultant Connect and Cinapsis, with other suppliers potentially participating. Consultant Connect had a real risk of loss and a 50 per cent chance of winning. The breaches were sufficiently serious to justify damages. The third ground of ineffectiveness was established, but overriding public-interest reasons required the contract to continue temporarily. The contract was shortened by 14 months to expire on 31 January 2023. Civil penalties were imposed of £10,000 on NHS Gloucestershire, £8,000 on NHS Bath and £4,000 on NHS Bristol.