Newsflash: Hempsons advises 2 NHS Foundation Trusts in successful procurement challenge against Local Authority

Lancashire Care NHS Foundation Trust & Blackpool Teaching Hospitals NHS Foundation Trust v Lancashire County Council [2018] EWHC 1589 (TCC)

Hempsons acted on behalf of Lancashire Care NHS Foundation Trust and Blackpool Teaching Hospitals NHS Foundation Trust (the “Trusts”) in successfully challenging Lancashire County Council (the “Council”) in relation to the award of a contract for the provision of 0 – 19 services.

The claim stems from the Council’s decision to seek to award a contract for Public Health and Nursing Services for children and young people (0 – 19) to Virgin Care Services Ltd. The process was run under the Light Touch Regime. Legal proceedings were issued in December 2017, the case was expedited, and the Trial concluded on 1 May 2018.

The Judge, in a ruling handed down today, upheld the Trusts’ challenge and concluded that the procurement award decision should be set aside. The Trusts proved a material breach in the process, namely 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. The Court held that:

I am 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.”

The case highlights the importance of a contracting authority following their stated process and the need to ensure that there is a clear audit trail and rationale as to the reasons for the decision, which can ultimately be relied upon in Court if necessary.

A more detailed analysis of the case will follow shortly.

Andrew Daly, partner in the procurement team, and Sam Stone, a solicitor in the dispute resolution team, led on this matter. Andrew says “this is a very satisfying result for the Trusts following their difficult decision to challenge the County Council. The case provides valuable lessons for commissioners and demonstrates that the quality of evaluation record keeping is just as important as having  a clear and transparent procurement process”.

Heather Tierney Moore, Chief Executive at Lancashire Care NHS Foundation Trust says “The support provided to the Trusts by the procurement team at Hempsons for this challenge was exceptional, particularly given the tight timetable. We felt supported throughout the whole process, with clear and practical advice provided at all times. We are pleased with the outcome and feel vindicated in following the action that we have taken.”

Wendy Swift, Chief Executive at Blackpool Teaching Hospitals NHS Foundation Trust says “The support and advice provided by Hempsons’ procurement team meant that we could progress our challenge knowing that we had an experienced team working with us. Hempsons’ team provided a professional and personal service. The decision to proceed to court was not an easy one, but we were fully appraised of the position at all times by a dedicated and hard-working team.

Rob Williams of Monckton Chambers was engaged by Hempsons to represent the Trust throughout the Court proceedings.

Hempsons’ specialist, integrated procurement and dispute resolution teams are able to utilise their significant experience of this and other procurement challenges to guide you through the issues you need to address when dealing with a contested procurement process, whether as a potential challenger or as a contracting authority defending a challenge.


Please also see our previous article on the outcome of the automatic suspension hearing at an earlier stage of this case

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Newsflash: Automatic suspension maintained – first automatic suspension case post NDA

Hempsons acted on behalf of Lancashire Care NHS Foundation Trust and Blackpool Teaching Hospitals NHS Foundation Trust (the “Trusts”) in resisting an application made by Lancashire County Council (the “Council”) to lift the automatic suspension in a procurement challenge. As a result of the claim issued by the Trusts at the end of last year, the Council were automatically suspended from signing the contract with Virgin Care Services Limited (“Virgin”). The Council made an application to lift the automatic suspension. The lifting application was heard on 25 January 2018, and the Court’s judgment has now been handed down.

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