Public Procurement: NHS 24 Successfully Lifts Prohibition on Contract Award

23 January 2012

Clinical Solutions International Limited v NHS 24 & another [2012] CSOH 10 concerned a challenge to a procurement exercise, conducted by NHS 24, for services in connection with telephone and online medical services. NHS 24 succeeded in an application, under Regulation 47(10) of the Public Contracts (Scotland) Regulations 2006 (hereinafter the “2006 Regulations”), for an interim order bringing to an end the prohibition from entering into a contract for the services.

The pursuer alleged breaches of the 2006 Regulations and the principles of equal treatment, non-discrimination and transparency. Lord Hodge considered that the Pursuer had a weak prima facie case and that the balance of convenience favoured the granting of the order sought by NHS 24.

The case provides further guidance on the test to be applied in relation to Regulation 47(10) applications. Lord Hodge endorsed the test set out by Lord Glennie in the earlier case of Elekta Ltd v Common Services Agency 2011 SLT 815. In any such application, the Court requires to consider: (i) the strength of the parties' cases, (ii) the balance of convenience having regard (but not overwhelming regard) to the question of whether the damages might be an adequate remedy, and (iii) the public interest.

The case also highlights the requirement, under Regulation 47(6) of the 2006 Regulations, for a disappointed tenderer to notify the contracting authority of its intention to bring proceedings prior to commencement of the litigation. Lord Hodge considered that this issue impacted on whether the Pursuer had demonstrated a prima facie case. Lord Hodge noted that:

“What is more difficult for CSL and what materially weakens its prima facie case is the fact that the letter was not served on NHS 24 until 5.13 pm on 15 December 2011, which was after office hours, and the summons was served 7.20 pm on the NHS Central Legal Office on the same evening...It was not disputed that the purpose of the Regulation 47(6) notice was to give the contracting authority an opportunity to remedy the default and to indicate the seriousness of the complainant: Luck (above) at para 42. I recognise that the Regulation does not lay down any period of notice and, in my view, it does not envisage disputes as to whether the period of notice was sufficient in a particular case to allow a contracting authority to take any remedial action. But in this case the issue is starker. Where service is affected after office hours on a contracting authority and a summons follows within a short period of time on the same day, it seems to me to be readily arguable that the economic operator has failed to give any notice which complies with Regulation 47(6)."

(Paragraph 14)

Roddy Dunlop QC and John MacGregor, of Axiom Advocates, acted for NHS 24. Mark Lindsay QC, also of Axiom Advocates, acted for the Pursuer.

http://www.scotcourts.gov.uk/opinions/2012CSOH10.html