InHealth Intelligence Limited v NHS England

In a procurement using an electronic portal, uploading tender material is preparatory; submission requires completion of the portal’s submission step before the deadline. A multi-lot procurement may nevertheless require one combined bid, so an error affecting one lot can prevent submission of the whole bid where the tender documents clearly say so.

A contracting authority retains a residual discretion under regulation 18 of the Public Contracts Regulations 2015 to waive non-compliance where necessary to secure equality, transparency and proportionality. That discretion is exceptional. It will generally be lawful, and ordinarily necessary, to enforce a clearly stated deadline where the failure is attributable to the tenderer.

The claimant challenged NHS England’s rejection of its tender for a four-lot Child Health Information Services procurement. Tender material was uploaded to an electronic portal, but the tender was not submitted before the deadline because of document-placement and file-upload errors shortly before closing time.

The issues were whether the lots constituted separate bids or one bid, whether the portal and error message were lawful, and whether NHS England had power or was required to admit the late or unsubmitted tender.

1. Claim dismissed. The claimant had not submitted a compliant tender before the stated deadline. Uploading documents alone did not constitute submission.
2. The ITT required one bid covering the lots selected by the tenderer. The bid had to be submitted through the portal by noon on 12 July 2022. Although the lots would be evaluated separately, an unresolved error in one lot could prevent submission of the combined bid.
3. The portal’s functionality and instructions were sufficiently clear. The error message stating that the file already existed was transparent to a reasonably well-informed and normally diligent tenderer. The failure resulted from human error and leaving submission until shortly before the deadline.
4. A residual discretion under regulation 18 of the Public Contracts Regulations 2015 could exist even where the ITT contained a bright-line rule. Deadlines remained the starting point and waiver was exceptional. Where the failure was attributable to the tenderer and the authority was not at fault, strict enforcement would generally be required to comply with equality, transparency and proportionality. The court did not decide whether regulation 56(4) applied where no tender had been submitted.
5. NHS England had investigated sufficiently and was entitled to enforce the deadline. Admitting the tender could have given the claimant an advantage over tenderers who had allowed time for the technical submission process. The decision was not manifestly flawed or irrational.