The case of Consultant Connect Limited v NHS Bath is most extraordinary. So many breaches of the regulations all happening during one procurement process is rare. Contracting authorities must comply with both Regulations 18 and 33 of the Public Contracts Regulations 2015 (PCR) when awarding call-off contracts, and in this case they clearly did not.
The judgement finds wide-ranging breaches of the Regulations, including that:
• the Defendants used the framework to effect the direct award of the contract to the Interested Party in breach of the equal treatment requirements under Regulation 18;
• the mini competition did not comply with Regulation 33, because (a) only one bidder was invited to tender; (b) the Defendants had tailored their requirements to that bidder; and (c) the pricing arrangement did not remotely resemble the pricing set out in the framework agreement; and
• two employees had conflicts of interest and, in breach of Regulation 24, no appropriate measures were taken by the Defendants to prevent them from being involved in the procurement.
Further the judge rejected the Defendants’ argument that non-parties should be unable to challenge the award of a call-off contract under the relevant framework agreement. On the facts of the case, the Court found that the contract award breached a relevant duty owed to the non-member and the non-member suffered, or risked suffering, loss in consequence.
The judge was clearly not happy and he made a contract shortening order, the first of its kind in the UK, ordered the Defendant to pay civil financial penalties and further found that the Defendant’s breaches were sufficiently serious to award damages.
In2 the bargain 