InHealth Intelligence Ltd v NHS England [2022] EWHC 2471 (TCC) (06 October 2022) (bailii.org)
InHealth brought a claim against NHS England when it failed to submit its bid before the deadline due to a human error. InHealth uploaded a document to the wrong lot which then led to the bidder being unable to re-upload the document to the correct lot before the deadline because the InTend e-portal used by NHS England did not allow a document with the same filename to be uploaded twice. The court was clear that the failure to submit the bid was InHealth’s fault as it was due to human error rather than a technical problem with the e-portal and if InHealth had prepared its bid with plenty of time to submit it would likely have realised its error and been able to correct and submit the bid on time. The court concluded that it would not generally be within the bounds of discretion to waive non-compliance with a stated deadline. However, if the failure to submit a bid was clearly the fault of the contracting authority and this led to one or more bidders being unfairly prejudiced it may be appropriate to waive non-compliance with the deadline in order to ensure equal and fair treatment to bidders.
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