06 March 2023


The Claimant bidder, Inhealth Intelligence Limited (“Inhealth”) challenged a decision by the Defendant, NHS England, to exclude it from a procurement for the award of contracts to provide child health information services (“CHIS”). The procurement was split into four geographical Lots. Inhealth was bidding for three of these Lots, with a total contract value of £140 million over a 6-year term (with an optional 3 year extension).

NHS England excluded Inhealth’s entire bid for all Lots, because, for one of the three Lots it was seeking to win, Inhealth failed correctly to upload a single mandatory bid document onto the e-portal. Due to the way the e-portal was structured, this meant it had been unable to click ‘submit’ in respect of any of the Lots, and therefore none of its documents had been submitted before the strict 12 noon on 12 July 2022 deadline set out in the procurement rules (the ITT).

The Court found that NHS England was entitled to exclude Inhealth’s entire bid for all Lots. In particular, the rules in the ITT were clear that (emphasis added):

“Tenders submitted via the e-Tendering portal must be received in full prior to the closing time and date for receipt of tenders.”

“The Contracting Authorities will not consider any tender response received after the stated deadline and failure to submit a response by the deadline will result in the exclusion of the bidder from participating any further in this procurement.”

“It is the bidders' responsibility to ensure that their tender has been successfully submitted. Tenders which are not submitted in accordance with the instructions detailed above, prior to the stated deadline will not be visible to the Contracting Authorities, and therefore cannot be taken further within the procurement process."

The relatively straightforward facts of this case belie an issue which can be (and has previously been) a source of tension, between whether a contracting authority should rigidly adhere to the procurement rules it has laid down, or whether the contracting authority’s overarching duties (under the regulations) of equal treatment, transparency and proportionality mean that a contractingauthority could or should allow some leeway in exceptional cases.

In the Inhealth case the contracting authority stuck to its guns and applied its rules literally; the Court found that it was entitled to do so. However, the Court also said the following (emphasis added):

The principles …[which can be derived from] earlier authorities, can be distilled as follows:

(1) The exercise of discretionary powers necessarily involves judgement on the part of the contracting authority. The court must respect this area of judgement and will not intervene unless the decision is unjustifiable. This is the proper meaning of a manifest error in this context;

(2) Exercising a discretion to waive terms which are stated as applying without exception is a departure from the terms of the procurement process and is therefore an exceptional course. This is because a waiver of such terms carries the very risks of unequal treatment, discrimination and a lack of transparency which the contracting authority is required to avoid;

(3) There may be circumstances where proportionality will, exceptionally, require the acceptance of the late submission of the whole or significant portions of a tender, most obviously where it results from fault on the part of the procuring authority;

(4) In general, even if there is discretion to accept late submissions, there is no requirement to do so, particularly where it results from a fault on the part of the tenderer.”

The language of point (4) is caveated with the words “in general” because:

a) The Court also cited with approval an extract from Professor Arrowsmith’s leading textbook on Procurement Law which states that: “It is suggested that, whilst there is generally no discretion to do accept a late tender, it is arguable that there is a duty to do so, at least prior to the award decision being made, when the tender is late because of the fault of the contracting authority itself.”

b) The judge in Inhealth also said that he had “no hesitation in concluding that however clear the wording of an ITT, there will at law always exist a residual discretion to waive non-compliance with the requirements of an ITT if it is necessary to do so to ensure equality, transparency and proportionality of the procedure as a whole, and doing so does not offend against those same principles.”

Potential learning from the case

In summary, whilst it will have come as welcome relief to NHS England that it was not in breach of the Regulations when applying the rules of its ITT strictly in excluding Inhealth from all Lots, this case provides useful steers:

1) For contracting authorities considering whether it might be possible, in exceptional circumstances, to keep a bidder in the competition notwithstanding the late submission of its bid; and

2) For bidders, who should be aware of the exceptional nature of any such discretion, and that the starting point is likely to be that – barring contracting authority fault (and even then not as a foregone conclusion) – the authority is likely to be entitled, if not required, to exclude a late submitted bid.

Where this judgment appears to land is that there is a residual discretion for a contracting authority to waive ITT non-compliance if necessary to ensure the equality, transparency and proportionality of the procedure. However, waiving non-compliance with a deadline would inherently run the risk of breaching these principles (given the treatment of the party that was late, relative to the other parties who had complied with the stated deadline). That is why even that residual discretion would normally not be exercisable to waive compliance with a deadline. However, where that failure to submit on time was driven by a fault of the contracting authority then equality or fairness could dictate that the non-compliance with the deadline should be waived.

There are also more practical lessons here:

1) Procurement law is full of strict timescales, whether for the submission of bids, or the filing of challenges. Ideally, bidders should leave themselves with sufficient time to deal with any unexpected submission issues, and should seek to ensure any limitations of the e-portal used are understood. If bidders do give themselves some additional time then they preserve the ability to contact the contracting authority or e-portal provider in sufficient time to overcome any technical submission difficulties they encounter.

2) From a contracting authority standpoint, it is worth considering the limitations of any off-the-shelf e-portal procurement solution used. The rules for tender submissions should dovetail with the submission limitations of the e-portal (as they did here). Particular limitations of the solution in this case were that:

a. All procurement documents had to be uploaded in a very specific way in order to be able to submit any of them at all. That might have benefits in ensuring all bid submissions were highly regularised and therefore easier to document manage and evaluate. However, it also meant that Inhealth was not able to submit any documents (even for the two Lots where there were no technical issues) and was therefore excluded altogether, meaning the contractual authority was denied the opportunity to evaluate a bid which might (or might not) have been the most economically advantageous tender.

b. The ‘error message’ was also not as clear as it could have been as to why Inhealth were not able to submit their bid. The Court found it nevertheless met the required level of transparency. However, had it been clearer about the technical error in Inhealth’s submission then Inhealth might have been able to rectify it and submit a compliant bid, which (as noted above) might or might not have been a winning bid.

Further Detail

The facts leading to the exclusion of Inhealth’s bid

The facts leading to the exclusion decision were that:

  • 20 minutes before the deadline, Inhealth’s employee thought all documents were ready to be submitted.
  • Upon clicking “submit” (11 minutes before the deadline), he received an error message – asking him to remove and re-upload a document on Lot 4. He did so successfully.
  • He clicked submit again. The same message appeared in relation to another document. The employee removed what he believed to be the correct document.
  • When he attempted re-upload the document he received another error message appeared: “the file you are uploading already exists. Please try again”.
  • In an after-the-event analysis, it was realised that this message was generated because he had previously uploaded the document in question to the incorrect location, so he was trying to upload a document with a name that already existed on the system.
  • Panicking because of the elapsing time, he tried to click “submit” again without the document in its mandatory placeholder but another error message appeared: “All mandatory Tender document Placeholders must be filled before submitting this return”.
  • He sent a message to the authority’s procurement team seeking assistance but felt there was not enough time to call the portal helpdesk.
  • The deadline passed and Inhealth failed to submit the bid.
  • The employee only realised what the error message meant after the deadline.

The ITT explicitly stated “It is important to note that any late submissions will not be accepted”. The Court also referred to a number of other important sections of the ITT, which made clear that the process was:

1. Tender responses were to be submitted via the e-portal;

2. Tenderers were to indicate which of the Lots they were submitting tender responses for, there being no requirement to submit Lots for any or any combination of Lots; and the Lots were to be evaluated separately for both price and quality.

3. In respect of attachments, they were to be uploaded to the correct location or 'placeholder' and all mandatory attachments were to be uploaded before the bids for each of the Lots being tendered were to be 'submitted' via the portal.

4. The portal did not accept files with the same name.

The ITT was clear about the process of submission. The ITT was clear as towhat the consequences for late/incorrect submission would be: the bid in its entirety (across all Lots) would not be accepted even where other Lots had otherwise been validly completed. NHS England therefore notified Inhealth that it did not recognise Inhealth as a bidder in the procurement for any of the Lots and that its bid would not be considered at evaluation stage.

In August 2022, the Claimant challenged the ‘live’ procurement, which was necessary because of the 30 days limitation period to bring claims. In doing so itsought an injunction to pause the procurement pending the outcome of its claim. The outcome of that application is summarised in our article: Claimant obtains a suspension of a live procurement with no cross-undertaking in damages. A suspension was ordered and the litigation proceeded at expedited pace to a trial from 31 January to 2 February 2023.

The Judgment

1. Was the e-Portal design inherently non-compliant with the Regulations (because it did not allow the uploaded bids in respect of Lots 1 to 3 to be submitted)?

Inhealth argued that this system design was contrary to the requirement of proportionality and equal treatment, discriminating against bidders who had chosen to bid for more than one Lot. This was because the way this procurement was set up meant that, whilst different Lots would be evaluated individually, for all intents and purposes the entire bid had to be submitted at once, and a bid would only be valid if all responses and mandatory documents for each Lot had been completed. This meant that an issue in one incomplete Lot could lead to exclusion in relation to other Lots that had otherwise been completed in full.

The Court stated that there was nothing improper with NHS England choosing an “off-the-shelf” product as long as it had suitable functionality and was clearly explained in the ITT and understood by Inhealth’s bid team. There was nothing about the way the e-portal functioned in this case that offended the principles of equal treatment, proportionality or transparency.

2. Did the 'error' message in respect of Lot 4 meet the legal standard of ‘transparency’?

Inhealth argued that the error message “The file you are trying to upload already exists. Please try again” was, in breach of the principle of transparency, not clear enough to enable bidders to swiftly identify and correct the error. This argument failed. The error messages were sufficiently clear and could have been remedied had the employee not been under such time pressure (due to them leaving submission so late).

3. Was NHS England’s decision to exclude Inhealth a lawful decision?

Inhealth argued that because the substance of the bid had been uploaded by the deadline (i.e. they were showing as uploaded but not yet submitted), permitting Inhealth’s bid to proceed (despite not being submitted in time) would not give Inhealth a substantive advantage over other tenderers.

That argument failed because the ITT requirement was for submission, not just uploading, by the deadline. The Court held that uploading was a “preparatory element to the submission, rather than something which could be considered of itself a submission”. The Court also held that allowing Inhealth to merely upload their bid documents would have given Inhealth an advantage of additional time over bidders who both uploaded and submitted bids in good time to ensure technical requirements were carried out properly.

Put simply, the Court found that Inhealth failed to comply with a clearly stated deadline and instructions and in the ITT. There was nothing to justify waiving a clear rule in the ITT in those circumstances.

This article was written by Richard Binns, Lloyd Nail and David Harrison, part of our Chambers UK Band 1 Ranked Procurement Team.


Key contact

Richard Binns

Richard Binns Partner

  • Dispute Resolution
  • Procurement Disputes
  • Procurement and Subsidy Control

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