Have the lessons from Lancashire Care NHS FT & Blackpool Teaching Hospitals NHS FT v Lancashire County Council been learnt?

It is nearly a year since the case of Lancashire Care NHS Foundation Trust and Blackpool Teaching Hospitals NHS Foundation Trust v Lancashire County Council was determined.  Hempsons advised the two foundation trusts in successfully challenging the Council’s process, which had been run under the Light Touch Regime.  See Lancashire Care NHS Foundation Trust & Blackpool Teaching Hospitals NHS Foundation Trust v Lancashire County Council [2018] EWHC 1589 (TCC).

The Trusts challenged the Council’s decision to award a contract for Public Health and Nursing Services for children and young people (0 – 19) to Virgin Care Services Limited. The Judge upheld the challenge and concluded that the procurement decision should be set aside. The Trusts demonstrated that the reasons given by the Council for the scores awarded to the Trusts and the winning bidder for the quality evaluation questions were insufficient in law and as a result the decision of the Council to award the contract to Virgin must be set aside.

We published an article on 22 June 2018, which covered a number of the key learning points.  Nearly a year on, and having advised on a number of other procurement projects since, both for contracting authorities and bidders, it appears to us that the key learning points from this case have not been consistently implemented by authorities. With many challengers now quoting the judgement in the Lancashire case when raising challenges, any such process deficiency increases the risk of a procurement law challenge being successful.

In any public procurement process governed by the procurement regulations (Public Contracts Regulations 2015), it is imperative that the bids are scored and that a final rationale is documented for the score(s) awarded. If there is a staged evaluation process, then this scoring and documentation exercise should be carried out at each stage. In the Lancashire case the Judge was critical of the lack of reasons that could be demonstrated for the decisions taken at moderation. The Judge stated that “although the panel reached consensus on scores, there was not necessarily or even probably congruity of reasoning that led each evaluator to subscribe to the consensus score for the question.” It is imperative that a contracting authority is able to justify the scores it has given and the decision that it has made.

While it may not be mandatory (depending on the process followed) that all the moderators agree on all of the reasons for awarding a particular score, it should be possible from the evaluation notes to understand the basis on which the moderators arrived at a particular score. In this case, the Judge was satisfied that the “notes do not provide a full, transparent, or fair summary of the discussions that led to the consensus scores sufficient to enable the Trusts to defend their rights or the Court to discharge its supervisory jurisdiction.”

It is clear to us from our experience nationally of procurements in the health and social care sectors (and more widely across the public sector) that procurement processes are sometimes falling short in terms of the level of audit trail that would be required by the Court in the event of a legal challenge.  If an aggrieved supplier requests information in relation to an award decision, usually during the standstill period, it is now usually the case that contemporaneous records of the evaluation and moderation will need to be disclosed at an early stage (see Technology and Construction Court Guidance Note on Public Procurement).  Contracting authorities need to be able to demonstrate a robust and defensible audit trail as, without this, the process will be at serious risk of successful challenge.

Our experience also shows that often evaluators and moderators need to better understand their roles and what is expected of them as part of the evaluation process.  Our experience highlights that this is often not the case, and frequently an otherwise well conducted and safe procurement process is opened up to challenge because of the actions or inactions of those evaluators/moderators. For this reason we often advocate (and can provide) training to evaluators on how to undertake their evaluation and moderation. We provide this training in person and by webinar. Whilst it does not guarantee that the evaluation and moderation exercise is carried out without fault it increases the likelihood that evaluation responses support rather than undermine a defensible procurement process.

Hempsons’ specialist, integrated procurement and litigation teams can utilise our significant first-hand experience to guide you through these thorny issues, working with our clients  to run defensible processes.   Please contact Andrew Daly to discuss these issues further.

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